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Education - HR e-briefing - Record Keeping and the Working Time Regulations

  • United Kingdom
  • Education - Briefings



In a recent decision, the Court of Justice of the European Union (CJEU) has ruled that the Working Time Directive (the Directive) requires Member States to ensure that employers keep daily records of the working time worked by each worker to ensure compliance with limits on working time and the right to daily and weekly rest periods.

This decision suggests that the record keeping requirements imposed under the Working Time Regulations (the Regulations) in the UK are insufficient to comply with the Directive, as the Regulations do not require records to be kept in relation to the right to daily and weekly rest periods nor do they explicitly require a record to be kept of the worker’s daily working time. Indeed, where workers have opted out of the average weekly working time limit, there is no obligation to keep records of their working time, only a list of opted out workers. This area of the Regulations relates to obligations on employers (enforced by the HSE including by criminal prosecution) rather than individual rights enforceable through employment tribunals. Our view is that any requirement to record daily and weekly rest periods would need to be introduced by legislative amendments to the Regulations. Current HSE guidance on keeping records of average weekly working time indicates that there is no specific need to keep records of actual daily working time, but institutions should stay alert for any change in this guidance which could signal a change of approach by the HSE.

The key provisions in the Regulations 1998 include, subject to certain exclusions and qualifications, a limit on average weekly working time and the right to daily and weekly rest breaks. These rights are derived from the EU Working Time Directive 1988.

Regulation 9 of the Regulations requires employers to keep records which are adequate to show compliance with the limits on average weekly working time, night work and the requirement to provide of health and safety assessments and to retain such records for two years from the date on which they were made. However, if the worker has opted out of the 48 hour average weekly working time limit, there is no requirement to record weekly working time - Regulations 4 and 9 require only that a record is kept of the opted out workers.

HSE Guidance on record keeping in relation to weekly working time (for non-opted out workers) states that “it is not necessary to create records specifically for the purposes of these Regulations, and employers may be able to use existing records maintained for other purposes such as pay. If it is clear that particular workers or groups of workers are unlikely to reach the various limits (e.g. because they always work a set 40 hour week), this requirement can be met simply by making occasional checks to ensure that nothing has changed.”

Under the Directive the only express record keeping requirement is to keep up-to-date records of all workers who opt out of the 48 maximum working week.

Recent CJEU decision

In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, the CJEU considered the extent of the employer record keeping obligations under the Directive. The case was brought by a trade union in Spain against Deutsche Bank, alleging that the Bank’s lack of formal systems for recording working hours meant they could not establish compliance with Spanish Working Time laws and overtime requirements and, moreover, provided inadequate records of compliance with the Working Time Directive in terms of maximum working hours, breaks and rest periods. Despite numerous rules on working time, flowing from a wide range of national sectoral collective conventions and company collective agreements, Deutsche Bank had not specifically set up any system for recording actual time worked by staff, instead relying on computer diary entries of absence and otherwise assuming normal hours worked.

The Bank argued that the Directive, and Spanish law, laid down an obligation to keep records of staff who had opted out of the maximum working week but not an obligation to maintain a record of “normal” working time.

The CJEU stated that whether, and to what extent, it is necessary to set up a system enabling the duration of time worked each day by each worker to be measured (in order to ensure effective compliance with maximum weekly working time and minimum daily and weekly rest periods) must be examined in the light of the following considerations:

• the essential objective of the Directive is to ensure the effective protection of the living and working conditions of workers and better protection of their safety and health, by ensuring that workers actually benefit from the minimum daily and weekly rest periods and the limitation on the duration of average weekly working time laid down in the Directive

• the arrangements made by Member States to implement the requirements of the Directive must not be liable to render the rights enshrined in it meaningless

• the worker must be regarded as the weaker party in the employment relationship and it is therefore necessary to prevent the employer from being in a position to impose a restriction of these rights

• similarly, on account of that position of weakness, workers may be dissuaded from explicitly claiming their rights vis-à-vis their employers where, in particular, doing so may expose them to measures taken by the employer likely to affect the employment relationship in a manner detrimental to that worker

In those circumstances, the CJEU concluded that it was “excessively difficult, if not impossible in practice”, for workers to ensure compliance with the rights conferred on them by the Directive with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for.

Therefore, “objective and reliable determination of the number of hours worked each day and each week is essential” in order to establish, firstly, whether the maximum working week was complied with and, secondly, whether the minimum daily and weekly rest periods were complied with.

As a result, the Court ruled that to ensure the effectiveness of the rights established in the Directive, Member States “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” – in other words, a system for recording actual daily working time.

The CJEU concluded by stating that it is for Member States to determine the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector, or the specific characteristics and size of certain undertakings.

Implications of the decision

As mentioned, regulation 9 of the Regulations requires employers to keep records which are “adequate” to show compliance with the 48-hour limit on the average week and the protections for night workers. It does not, however, specifically require all daily hours of work to be measured and recorded, nor is there any requirement to record daily or weekly rest periods – and no such specific requirement appears in the Directive. The CJEU's judgment, however, casts doubt on whether the UK record keeping rules comply with the Directive's requirements, as now interpreted by the CJEU.

It is doubtful that the Regulations, as they stand, can be interpreted or applied by UK courts and tribunals to give effect to the CJEU’s decision. It is also difficult to see how individuals could rely on the CJEU’s decision to support a claim against their employer. Even if the Regulations existing record keeping requirements need to be interpreted to give effect to the CJEU’s decision, individual workers do not have standing to bring a claim for non-compliance with those requirements: the power of enforcement lies only with the relevant enforcement body eg the Health and Safety Executive. Given the dearth of prosecutions under the existing record keeping requirements, and the HSE’s current guidance, it seems unlikely that an enforcement body would have any real interest in bringing a test case on this issue.

It is certainly possible that the UK Government may opt to change the Regulations in light of this case. It is nonetheless noteworthy that it has failed to do so in the wake of holiday pay decisions and there may be less incentive to do so over record keeping. What is more, it is arguable that the issue of keeping records of rest breaks/periods may fall away post Brexit (from a working time perspective) given that it is difficult to see how an obligation to keep records confers any enforceable rights on workers – although this is far from clear. Obviously, if the Government did change the Regulations, institutions would be covered by any new record keeping obligations.

Having said that, however, institutions would be wise to review what records they do actually keep to ensure compliance with the Regulations, as failing to accurately record time worked can seriously jeopardise an institution’s ability to successfully defend claims. It is also possible that the HSE may change its guidance and enforcement policy in relation to workers who have not opted out of the weekly working time limit, for example to specify that the “adequate” records required under Regulation 9 require records of actual daily working time to be kept. This would, however, be a significant development for the education sector, arguably requiring greater monitoring, control and direction over the hours of teaching and academic staff. In any event, given the current sector focus on mental health, it would be prudent for institutions to check that expected or planned working hours are not excessive and that rest periods can be observed.

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