Currently, the UK laws set out in the Working Time Regulations require employers to keep ‘adequate’ records which show that they comply with the 48-hour average working week for any workers who haven’t opted out, and the limitations on night work. A new ruling from the EU ruling goes even further and says that each Member State should have rules in place that require employers to record hours worked each day by each worker, including any overtime hours. This is because, without such a record, the CJEU believes it is difficult to ensure that the maximum working week, daily rest and weekly rest periods are complied with.
Even though the UK is in the process of leaving the EU, the CJEU ruling is binding on UK courts and will be applied going forwards. There is the potential, however, that working time rules may be amended once Brexit takes place. As the law on working time records has not yet been changed, employers can decide to start recording all working hours in line with this decision. Without strict rules in place about how to record, it will be up to employers to choose how to do this – whether they do it online, through a clock in or out system, or using paper records.
Possible issues with this ruling include the recording of hours that are worked by employees outside of their normal working hours, for example, does time spent answering emails on the commute to work, or completing tasks from home after the working day ends, need recording? If so, how can an employer ensure their records are accurate if they are unaware that such work is being carried out. Employers will also need to ensure any flexible working policies in place, such as flexi-time and voluntary overtime, are being operated properly and in line with working time rules.