The European Court of Justice (ECJ) recently handed down a judgment confirming that employers must set up a system for measuring actual daily working time for individual workers.
What does this mean in UK law and what are the potential practical implications of this decision for employers?
In the UK, under Regulation 9 of the Working Time Regulations 1998 (WTR) it is a requirement for employers to keep “adequate records” to show compliance with the 48-hour working week. However, there is no specific requirement to record and measure all daily hours of work or the measuring and recording of rest breaks. The Health and Safety Executive (HSE) also does not currently require employers to record this information. Employers may be able to rely on pay information to comply with the current UK legislation.
The ECJ noted that the EU Charter of Fundamental Rights gives specific form to the right to a limit on average weekly working hours and to daily and weekly rest periods. Therefore, in the absence of a system to record this accurately there was no possible way to determine whether a worker’s rights were being complied with.
The recent judgement raises doubt whether the current UK rules are compliant with the Directive’s requirements. In an area of uncertainty like this, it is likely that a test case will have to go through the tribunals before any trickle-down guidance is provided in the UK.
However, it is worth examining the feasibility and cost of implementing a system which accurately records working time and daily and weekly rest breaks to comply with the Directive. Although there is no UK case law on this matter currently, as and when the law develops, it is reasonable to assume that this will become a requirement.
If you are unsure about the applicability of European judgments or the provisions in the Working Time Directive, you can contact your dedicated Employment Lawyer who will be happy to help you.