Are the UK's working time record-keeping rules fit for purpose?

The European Court of Justice has ruled that there is an EU-wide requirement under the Working Time Directive for employers to maintain an “objective, reliable and accessible system” to measure working time, including normal working time and daily and weekly rest breaks. It has said the Spanish labour law was defective in this respect. Could the same be true in the UK?

This latest working time ruling from the ECJ resulted from litigation between a number of Spanish trade unions and Deutsche Bank SAE. The Unions were seeking a declaration that the Bank’s rather rudimentary record-keeping system (relying on absences being recorded in an Outlook calendar) failed to comply with Spanish law. This meant that there was no easy way to check the actual hours worked in the case of workers who had not expressly agreed to work overtime.

The Spanish high court was of the view that there was no requirement in domestic law to record ordinary working time (as opposed to contractual overtime). It therefore made a reference to the ECJ for a ruling on whether these provisions were compatible with EU law.

The ECJ has said that although there are no general record-keeping requirements in the Directive, the explicit obligation on Member States to take the “necessary measures” to ensure its obligations are observed makes it clear that they must ensure employers are obliged to set up a system to measure the daily working time of each worker.

In Britain, the Working Time Regulations do contain some explicit record-keeping obligations that will apply to all workers, except those that have opted out of the weekly working time limit. Regulation 9 lays down a legal requirement for employers to maintain “adequate” records for two years in relation to some, but not all workers’ working time rights. There are explicit record-keeping obligations in relation to maximum weekly working time, young workers and night workers, but no such requirements in relation to daily and weekly rest breaks, though they may be implicit in the obligation to record time actually worked.

The ECJ’s ruling was primarily concerned with daily working time, but it is clear from its reasoning that the same principles apply equally to all the requirements of the Directive in relation to working time and rest breaks.  It therefore seems likely that the limited provisions on record keeping in the Regulations have not been interpreted to date in a way which is compliant with the Directive. In particular, the requirement for the records to be “adequate” will now need to be read in accordance with this recent judgment which makes it clear that such records must be “objective, reliable and accessible”.

It is too soon to assess the precise impact of the ruling in the UK. However it is likely that the decision will encourage workers and their representatives to focus more closely on employers’ record-keeping obligations, particularly in sectors where significant amounts of unpaid – and often unrecorded – overtime is worked. It would therefore be sensible for employers to review the working time records they keep, particularly where they currently rely wholly on pay-related data.

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