By Rebecca List
Head of Employment and Partner
SINCE the introduction of the Working Time Regulations in 1998, UK employers have been required to maintain records to enable them to show that working time limits are being complied with.
More specific regulations govern working time for young workers, for those doing night shifts, and for work involving special hazards or heavy mental strain.
On the advice of the Health & Safety Executive, there was no need for specific records to be kept of actual daily working time and instead, existing records that were maintained for other purposes (such as pay) may be relied upon to ensure that limits on working time were being adhered to.
A recent case brought before the European Court of Justice, ECJ has called that advice into question. Is it possible that the UK's Working Time Regulations do not comply with EU law after all?
The ECJ were asked to determine whether employers were required to record actual hours worked each day, in order to ascertain compliance with working time limits, and the answer was a definitive yes. It considered that the only way to guarantee workers' fundamental rights to maximum working hours and rest breaks was for employers to have an 'objective, reliable and accessible' system of keeping adequate records of the actual hours worked by those workers who had not opted out of the 48-hour weekly working time. It is also the responsibility of Member States to ensure that this is implemented, and employers cannot cite expense in sidestepping their obligations.
The HSE are yet to update their guidance, but what can employers do in the meantime to mitigate the risk of claims?
Look at whether your system is capable to recording actual working hours, especially if you have staff who work regular and unpaid overtime or nightshift, or young workers, since they may become subject to greater scrutiny by the tribunals and the HSE.
Remind your workers to declare any second jobs, and where there is any doubt, ask them to opt out of the 48-hour limit. Keep adequate records of those who have opted out together and copies of their signed opt-out agreements. Remember also that those records must also be kept for two years.
The Government has consistently maintained that ECJ decisions made before the UK's departure from the EU will continue to bind domestic courts post-Brexit, although whether we will see a formal amendment to the Working Time Regulations to properly implement the EU's Directive, remains to be seen.
To find out more contact Tollers' Trust and Estates Team on 01604 258558.