Businesses could face legal action if they do not properly record all hours actually worked by workers, including authorised overtime, said Europe’s top judges in a recent judgment.
The case involved a claim by a Spanish trade union seeking a declaration against a German bank requiring it to set up a system recording the hours staff worked each day. The European Court of Justice (ECJ) has confirmed all EU member states must ensure employers introduce an “objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured” so that workers’ rights are complied with (and which can be used as a defence by employers). The method of recording working hours is left to member states.
In the UK, the Working Time Regulations 1998 (WTR), only required employers to keep ‘adequate’ records of the working hours of those workers who have not ‘opted out’ to ensure their hours do not exceed an average 48 hour maximum per week and that the limits on night work are complied with. However employers must take all reasonable steps to ensure the average 48 hour limit is complied with on health and safety grounds.
Although many UK employers do not maintain specific records as a matter of course, they may do so where there are concerns about the working hours of particular workers or departments (whether they have opted out or not). This ruling means all employers must establish systems to record working hours of all workers. For hourly paid workers payroll records may be sufficient if they are accurate, but for others it will be less straightforward.
Records must be kept for 2 years and the rules on working time are enforced by the HSE.
Post BREXIT, (although the situation is less clear in a no deal situation) most EU employment rights will be restated into UK law. Less popular laws such as the WTR may then be subject to change.
For further advice on this ruling, including on what amounts to working time, or any other employment law query contact your usual adviser in the employment team or Elizabeth Maxwell at [email protected] or by phone on 01737 854501.
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