Legal issues – Working time and record-keeping


The UK’s myriad rules on working time, rest breaks, rest periods and holidays are found in the UK’s Working Time Regulations 1998 (WTR). The WTR were developed from the Working Time Directive (WTD), which operates at a European level.

Much of the European case law is decided on the WTD, which increasingly commonly results in a conflict between the judges’ decisions and the wording of the WTR. We now have another example of this.

Most employers will be aware of the rule that employees are not allowed to work more than 48 hours per week (on average), unless the employee has opted out of that limit. The WTR currently require employers to keep ‘adequate records’ to show that they are complying with the various rules in the WTR, but do not require records to be kept of daily or weekly rest or of the hours worked each day for every employee.

Recent decision

However, in a recent case heard by the European Court of Justice (ECJ), the ECJ held that employers must now set up a system to monitor how long each employee works on a daily basis, and to ensure that the rules on rest breaks and rest periods are adhered to.

The ECJ emphasised the importance of employees’ rights being protected, and stated that without an effective monitoring system it is difficult to ensure that protection. As such, the ECJ stated that employers must ‘set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’.

As this was heard by the ECJ, it applies to the UK and the WTR. As the decision relates to both hours worked and rest breaks / periods, even having opt-outs for employees will not remove the burden on employers to monitor time worked by each employee. Employees are also not able to opt out of their rights to a rest break / period, and there has been other case law to suggest that employers should actively encourage employees to take breaks.

What does this mean?

As we are still part of the EU, technically the WTR should be amended to expressly require employers to record working time as directed by the ECJ. There is of course a question mark in relation to Brexit, as the UK may choose to overhaul working time legislation if we do leave the EU, despite stating that any pre-Brexit rules and decisions would be enforced.

It is therefore not clear what impact this will have on UK employers, but nevertheless employers may wish to start investigating how they might be able to monitor time spent working as required by the ECJ. That may be less of an issue in some industries such as manufacturing, but could be a lot more difficult in other environments, particularly those that encourage remote and agile working.

If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.

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