Working Time Law and What You Need To KnowJun 25, 2019
What records need to be kept to comply with Working Time law?
The rules surrounding working time have been around for a while now and we are all comfortable with the need to ensure employees don’t work more than 48 hours a week (averaged over 17 weeks – or other period as agreed with the staff) unless they choose to opt-out – plus all the rest breaks during the working day, between shifts and weekly, variations for young workers, special arrangements for night workers and in regard to annual leave.
All these requirements result from the European Working Time Directive, which was adopted into domestic law in 1998 as the Working Time Regulations (WTR).
Regulation 9 of the WTR 1998 only requires employers to keep ‘adequate’ records to show compliance with certain, but not all, of the limits and requirements specified in the regulations (to show that the limit on average working time, night work and provision of health and safety assessments are being complied with). Records must be kept for two years. Regulation 9 does not specifically require, however, for records to be kept of the hours worked each day by every worker.
Now the European Court of Justice (ECJ) has ruled that clear records – in an ‘objective, reliable and accessible system’ – must be kept showing start and finish times of each worker, including overtime. This is so the duration of their working day can be measured and the objective of the law – to ensure that the health and safety of workers – is properly and effectively protected.
The UK government’s attempts to intervene on this matter and to argue against the judgment has fallen on deaf ears.
So what does this mean?
The WTR will likely need amending to incorporate this change and guidance issued to employers. In the meantime, there is no need to immediately overhaul your systems, but it would be prudent for employers to think about how they measure working time and whether improvements to those processes can be made now.
The eventual change in legislation may mean that employees have a new cause for complaint to the Health and Safety Executive (who enforce employers failure to keep proper records), however, on the plus side, it will mean definitive proof of working time in order to combat claims for breach of the working time regulations and unpaid wages will be more easily accessible.