What records must an employer keep to record working time?

A recent European Court of Justice decision has held that in order to comply with the provisions of the EU Working Time Directive (No. 2003/88), employers are obliged to set up a system for measuring actual daily working time for individual workers. What impact will this have on UK employers and their obligations to their workers?

The recent case of Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE considered what records an employer was obliged to keep to comply with the Working Time Directive.  Under Spanish legislation, there are no requirements for workers to have records maintained by their employer.  However, the ECJ has held that Member States must require employers to set up objective, reliable and accessible systems enabling the duration of time worked each day, by each worker, to be measured in order to comply and to ensure the effectiveness of the rights under the Directive.  Although Spanish law did require a system for recording overtime hours worked by workers who had given their consent, this record did not provide workers with an effective means of ensuring that the maximum weekly working time, including overtime hours, is not exceeded and also that the minimum daily and weekly rest periods by the directive are observed.  In addition, Spanish procedural rules allowed other sources of evidence, such as witness statements and emails, to provide indications of a breach of any rights.  The ECJ however felt that, unlike a system that measures time, sources of evidence do not enable the hours worked to be objectively and reliably established, particularly taking into account the worker’s position in the employment relationship.  Therefore, a system enabling the time worked by workers each day to be measured offers workers effective means to easily assess objective and reliable data.

In the UK, Regulation 9 of the Working Time Regulations 1998 requires employers to keep and maintain records: detailing an employee’s average weekly working time; night workers’ normal hours of work; specific working time for young workers; and ensuring that health and safety assessments are being complied with.  These records must be maintained for each applicable worker and any failure to keep such records is an offence.  However, there is currently no requirement for an employer to retain records to show that minimum daily and weekly rest periods have been complied with.  Therefore, to implement the EU Directive properly in accordance with this ECJ decision, the UK should require such records to be kept and so will have to consider what steps it will need to take.