Currently the obligations on British employers under the Working Time Regulations 1998 (WTRs) to keep records of staff’s working hours are limited.
A recent judgement by the European Court of Justice in 2019 has cast the compatibility of these record keeping rules with the European Working Time Directive 1998 into doubt. This is the Spanish case of Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE.
What are the Working Time Regulations 1998?
Hours of work were largely unregulated in the UK until the introduction of the WTRs. The WTRs introduced rules and protections for workers (with certain exceptions) relating to their working time, limiting working hours and providing for rest breaks and holidays. The WTRs implemented the European Working Time Directive in the UK, which was intended as a health and safety measure to protect workers.
Who is a worker?
The WTRs protect “workers” who are considered to be someone either: working under a contract of employment or someone working under any other contract where the individual is undertaking any personal work or services for the other party in that contract other than where the other party is a client or customer of the individual in the course of running a business. Broadly speaking this means that self employed individuals will fall outside of the definition of a worker.
What is working time?
Under the WTRs “working time” is defined as any period during which a worker meets all three criteria of:
- working;
- carrying out their duties; and
- at the employer’s disposal.
Working time also covers when a worker is receiving “relevant training” or any other time agreed in a relevant agreement to be working time.
What are the employer obligations under the Working Time Regulations?
The WTRs place various obligations on employers, including providing paid holiday, limits on weekly and daily working time, and weekly and daily rest breaks. The level of protection afforded to a worker will vary based on the type of worker, for example, young workers and night workers are given special protections.
What are the employer’s obligations to keep records of daily working hours under the Working Time Regulations?
An employer must keep “adequate records” of the hours their employees work to show compliance with a 48-hour working time limit on the average working week and to protect night workers. However, the WTR’s do not require employers to record all daily hours of work undertaken by their employees or daily or weekly rest breaks.
How has this been challenged by the European case law?
A recent judgement by the European Court of Justice (ECJ) in May 2019 found that in order to comply with the Working Time Directive on maximum weekly working time and daily and weekly rest, Member States of the EU 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 left for EU Member States to decide the arrangements for implementing such a system.
In the absence of such a system allowing the time worked each day to be measured, the ECJ decided it was not possible to identify objectively and reliably the number of hours worked, when the work was carried out, or the amount of overtime worked. This makes it very difficult for workers to make sure their rights are met and could undermine the Working Time Directive’s objective of protecting the health and safety of workers.
The obligation under Regulation 9 of the WTRs for a British employer to keep “adequate records” does not actually require records to be kept of daily hours of work, or daily or weekly rest periods. Guidance from the Health and Safety Executive (HSE) states that specific records are not required and employers can use records kept for other purposes, for example, pay. The ECJ case law decision calls the adequacy of current WTR requirements of record keeping of working time into question. So, there is a risk that the HSE and courts might start interpreting the law in such a way that might require more stringent working time recording obligations on employers. Consequently, employers may be best advised to ensure such records are kept.
Some commentators have also suggested that the Government may have to amend the WTRs to avoid a claim that the WTR do not fully reflect EU law.
Keeping adequate records of hours worked is also vital for employers to be able to evidence compliance with their National Minimum/Living Wage (NM/LW) obligations. Without clear records of a worker’s working time, employers would be open to a challenge that a worker has not received sufficient remuneration to meet with the right to the (NM/LW). Breaches of the (NM/LW) can lead to fines and being named and shamed, so employers need to be acutely aware of how long workers are working and make sure they are paid at least the relevant (NM/LW).