advo hr takes a closer look at a recent Spanish employment law case, that went as high as the European Court of Justice, which advised employers to keep accurate records of hours worked including over time. Whilst this hasn’t been incorporated into UK employment law, tribunals may interpret the Working Time Regulations in line with this advice, even if this hasn’t been applied in UK legislation. We therefore look at reviewing processes in line with this case.
The European Court of Justice (ECJ) concluded that Spanish case Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE the EU Working Time Directive (WTD) requires employers to accurately record the hours worked including overtime. Here in the UK, the WTD is known as the Working Time Regulations (WTR) and at present the WTR only require ‘adequate’ records. However this ruling shows that the ECJ believe the WTR are not sufficient to fulfill the WTD and therefore does not comply.
What should currently be recorded
Under the current WTR, employers have to maintain and keep adequate records of working time for all workers who have not opted out of the 48 hours per week on average. At present the records should include the number of hours worked including overtime and should incorporate the maximum weekly working time, for young workers the maximum daily and weekly working time and maximum length of night work etc. There is no set method of how to record the working hours, only that they should be recorded and kept up to date. For instance, working hours may be recorded for payroll purposes and these records would currently count as they would details the hours worked. These records should be kept for two years.
There is also a requirement to keep a record of those workers who have opted out of the 48 hour maximum working week. This includes their names and copies of their signed opt-outs. There is currently no requirement to keep track of the hours worked for those who have opted out.
The ECJ have said the above advice under the WTR isn’t sufficient enough to comply with the WTD and therefore employers should act accordingly to rectify this.
Next Steps
The UK government may decide to amend the current WTR to incorporate the outcome of the case to enforce accurate records of hours worked as the court ruling was made before leaving the EU. Tribunals may look to apply the WTR in line with the ECJ ruling, which may mean UK employers are still required to record all working time. To err on the side of caution we would advise that employers review how they currently record working time and ensure that the current obligations are being adhered to, with the view of moving towards recording the duration of time worked each day, for all workers.
If you would like to know more about how this affects your organisation or have concerns or questions on any other HR staffing issues please contact us. Initially email hrexperts@advo.co.uk and we will come straight back to you.
