Blog: Oh No! Are we back to clocking on?

It is probable that the recent ECJ decision in the case of Federacion de Servicios de Comisiones Obreras v Deutsche Bank may have passed you by.  ‘Record keeping’ and ‘working time’ are hardly terms that put fire in our bellies!   However, this case has shone a light on a small but important section of workers’ working time rights.  Importantly, it may end up having a significant impact in terms of time and cost for UK employers.

ECJ case on records of daily working time

The case itself involved a dispute between a Spanish workers’ union (CCOO) and Deutsche Bank’s Spanish operation.  The union claimed that Deutsche Bank were in breach of their obligations under the Working Time Directive.  The union argued that the bank should have set up a system to record the actual number of hours worked each day by each member of staff (so that a check could be made that the limits on working time were being complied with).  The ECJ agreed with the union and held that ALL employers (irrespective of their size and the resources available to it), are obliged to keep objective, reliable and accessible records of the hours of work and rest breaks for ALL employees.

What UK law currently requires

In the UK, the Working Time Directive was translated into UK domestic law via the Working Time Regulations 1998 (WTR). Under the WTR, UK employers are required to keep records which are adequate to show whether certain working time limits and requirements are being complied with.

Whilst I know this is not riveting stuff, you may wish to know that records must be kept for each worker employed by the employer in relation the following:

1. maximum weekly working time (i.e. average of 48 hours for each seven days)
2. maximum working time for young workers
3. maximum length of night work
4. maximum night work involving special hazards or heavy physical or mental strain works (i.e. 8 hours in any 24 hour period during which the night worker performs night work)
5. the requirement that no young worker works in the restricted period””although this is subject to limited exceptions
6. the requirement not to assign an adult worker to night work until the worker has the opportunity of a free health assessment and to offer regular health assessments for night workers
7. the requirement not to assign a young worker to night work until the worker has the opportunity of a free health assessment and to offer regular health assessments for young night workers.

Since the WTR were introduced, the HSE’s advice to employers has always been that specific records of daily working time are NOT required and that employers can rely on existing records maintained for other purposes, e.g. pay.  Whilst this advice remains the HSE’s current advice, it would appear to be at odds with the ECJ’s decision.

What should employers do now?

Firstly there is no immediate need for panic!  Many employers will already record actual hours worked (particularly where workers are paid by the hour). For those who don’t, a quick internet search throws up oodles of techy solutions for recording time.

And there are many good reasons for you knowing how many hours your employees work. You will know from our recent blogs on mental health and well-being that employees putting in too many hours can be an indicator of stress. Other obvious reasons include productivity and performance issues.

Also, you do not need to worry that you will be flooded with ET claims for breach of WTR record-keeping.  In the UK, legal proceedings relating to an employer’s failure to keep records cannot be brought by individual workers, but are instead brought by the HSE.  A successful claim can result in the employer being fined and/or being ordered to take remedial action.

It is not clear how the UK Government will respond to this – they have other things on their mind currently!   For now, I suggest you review your current arrangements for recording time for your employees.  Aside from the actual hours listed in the contract, how else do you REALLY know what hours your employees are working?

Whilst I don’t see this as a return to using a clocking-on device, remember that working time is essentially a health and safety issue and not just a tick-box exercise.  As we all become more aware of mental health issues in the workplace, and how a poorly run workplace can contribute to those problems, perhaps we all owe it to our teams to maintain more awareness of how long they are working as part of our overall duty of care.

 

Anne-Marie Boyle
Partner
Email Anne-Marie or call 0117 325 0924