The Working Time Regulations 1998, regulation 9 requires employers to keep ‘adequate records’, so they know if the weekly working time limit (normally 48-hrs) and the night work limits are being complied with.  This does not go as far as covering recording daily or weekly rest breaks, or the gaps between shifts or days in work that are given each day, nor does it specifically require all hours of work, such as normal hours plus overtime to be specifically recorded although ultimately you may be monitoring for other purposes, such as making payment.

The Health & Safety Executive guidance states that specific records are not required and that employers can rely on existing records that they’re maintaining for other purposes, such as payroll, in order to meet their regulation 9 obligations.

A recent decision of the European Court of Justice in relation to some Spanish workers for Deutsche Bank calls that guidance into question, and there must now be serious doubts as to whether the UK legislation is compliant with the requirements of the Directive that sits behind it.  This particular legal action involved a trade union backed complaint and a declaration that the bank has an obligation to set-up a system to record the actual number of hours being worked each day by its staff in order that it could check that the collective agreements with the union around this topic and the national legislation relating to working time were being complied with.

The ECJ noted that the right of every worker to a limit on their maximum working hours and to daily and weekly rest are enshrined in the European Charter.  The Working Time Directive is therefore meant to give specific form to those rights, and employers are obliged to implement necessary measures to ensure that workers benefit from those rights.  It noted that workers are the weaker party in the employment relationship, so it is necessary to prevent the employer from being in a position to impose a restriction on the worker’s rights.

In the absence of a system enabling the duration of working time worked each day by each worker to be measured, it wasn’t possible to determine objectively or reliably either the number of hours somebody was working, when that work was being done or the number of hours of overtime they were working.  The knock-on effect of this was that it was very difficult, if not impossible in practice, for workers to ensure that their rights were being complied with.  As such, the national law did not envision or guarantee the effectiveness of the rights conferred by the Charter and the Directive, compromising the objective of protecting workers health & safety.  Using this system nobody could verify what the employer was saying was correct. Thus, the Court ruled it must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured.  It is for the member states to define the specific arrangements relating to this.

In conclusion, this is likely to require our courts to interpret case law in the light of this ruling, so employers ought to take this into account from now on and put in place systems which accurately record the hours people are working.