Working time: what records do employers need to keep?

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 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?

In a Spanish case called Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE, the European Court of Justice has decided (following the earlier opinion of the Advocate General) that the Working Time Directive requires employers to accurately record the hours worked by their workers, including overtime. Employers are under an obligation to set up an "objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured".

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 are free to determine the required method of recording working hours.

What next?

The judgment suggests that the Working Time Regulations do not properly comply with the Working Time Directive, in that they only require employers to keep 'adequate' records (which can be existing records created for other purposes) to show compliance with the requirements on weekly working time and night work. There is no obligation for records to cover daily or weekly rest; norto record all working hours.

The impact of the ECJ's decision depends on whether, and if so on what basis, the UK leaves the EU; and if the government decides to amend the Regulations. Nevertheless, tribunals may interpret the Regulations in line with the decision and, therefore, employers should think about reviewing their processes for recording working time.

Please get in touch with your usual Brodies' contact with any queries on working time record keeping requirements. Users ofWorkbox, the employment team's online HR site,can access detailed FAQs on Working Hours and Rest Breaks.