In terms of the Working Time Regulations, employers are under an obligation to keep and maintain records that are ‘adequate’ to show that:
- Working time (including overtime) for all workers who have not opted-out does not exceed 48 hours per week on average; and
- The limits on night work have been complied with.
Records must be kept for two years from the date on which they were made. There is no requirement to keep records in relation to rest breaks and rest periods.
The Regulations do not specify what format records have to take. Guidance published by the Health and Safety Executive states that employers don’t necessarily have to create records specifically for the purposes of showing compliance with the Working Time Regulations. It may, therefore, be possible to use existing records maintained for other purposes such as pay.
There is also an obligation to keep up-to-date records of all workers who have signed agreements opting-out of the 48-hour maximum working week. This could be a list of the relevant workers’ names together with copies of the signed opt-out agreements. There is, however, no need to keep records of the hours actually worked by these workers.
Do the Regulations go far enough?
The Advocate General has recently given his opinion in a Spanish working time case called Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE. If this opinion is followed by the European Court of Justice it will cast doubt on whether the Regulations go far enough to comply with the requirements of the Working Time Directive.
In the case, Spanish trade unions brought an action against Deutsche Bank seeking a declaration that the bank was required to set up a system recording the actual number of hours worked each day by its full-time employees. The bank’s position was that there was no such obligation under Spanish law, only an obligation to record overtime hours.
The Advocate General ruled that the Working Time Directive requires employers to set up a system for recording the actual number of hours worked each day for workers who have not expressly agreed to work overtime. Without a system for measuring the number of hours worked, there can be no guarantee that all the limits laid down by the Directive (in relation to maximum weekly working time, rest breaks, daily and weekly rest periods etc.) will actually be observed or that workers will be able to exercise their rights. Member states would be free to determine the required method of recording working hours.
The opinion of the Advocate General is only advisory and, although followed in the majority of cases, is not legally binding on the ECJ. This blog will be updated when we have a decision from the court.
On February 4, 2019