11th June 2019
Do employers have to keep accurate records of the exact hours their staff work?
So it seems.
According to a recent case decided in the European Court of Justice. (Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAW (C-55/18) EU:C:2019:402).
In order to comply with the requirements of the ‘Working Time Directive’, which is legislation that all member states of the European Union must comply with in relation to workers’ rights, the Court held that for employers’ to fulfil its duties under this law they must set up an “objective, reliable and accessible system enabling the duration of time worked each day by each worker (NB – not just ‘employees’) to be measured”. The Court’s primary reasoning for this was to ensure workers’ gained the minimum required rest periods between shifts of 11 hours each 24 hour period.
Currently in Great Britain, employers’ only needs to keep “adequate records” of its workers’ hours to show compliance that their workers are not working over 48 hours per week, unless they sign an express opt-out agreement. Also, the Health and Safety Executive (HSE) states that, currently, employer are able to rely on other reference periods such as pay – however, this may not go far enough in light of this decision.
For example, agricultural employers or retail employers (and such industries with variable shift patterns) with, say, 50 workers or more, will most likely have to implement and maintain an electronic sign-in register to keep secure and reliable records of hours worked, since paper records are likely to be more liable to ‘gaps in the rotas’ and to simply ‘get lost’. In practice, installing electronic systems would cost employers’ thousands of pounds each year to ensure their registration system remains up-to-date, accurate and adaptable to changing technology. The administrative task which employers face to, firstly, install, and thereafter maintain, monitor and record accurate records of hours is bound to be huge and simply too much to bear; especially for small businesses such as pubs, restaurants and labour yards.
We anticipate that this decision is likely to be ‘refined’ in the near future; by both European and national courts to provide member states with some examples of how this can be achieved in practice, without carrying the decision’s vagueness and impracticalities. Further, the extensive scale of this encumbrance upon small business would be not possible to consistently enforce by governing regulators, such as the HSE.
It’s important to note that this situation may play out differently depending on if and/or when the UK leaves the EU!