Flexibility v. Certainty: Working Time Woes

According to the European Court of Justice last week, employers must have, “an objective, reliable and accessible system enabling the duration of time worked by each worker to be measured”. We look at what this judgment means for businesses in practice.

What does this mean?

The Working Time Regulations in themselves aren’t newsworthy; they’ve been around since 1998. What has however been called into question is whether or not the UK has properly implemented European law by only requiring employers to keep “adequate records” to demonstrate that working time limits are being complied with (this is slightly different from requiring an employer to keep records of all hours worked).  

From an employment claims perspective, the law does not allow employees to claim compensation in the Employment Tribunal purely because working time records have not been kept and this new ECJ judgment does not change that position.

That said, if an employee brings a claim more generally because they consider that their rights in relation to working time have been breached (for example, in relation to the 48 hour working week), this new ECJ case may make such a claim harder to defend if an employer doesn’t have the requisite “objective and reliable” records in place to use as evidence.

What do we think?

It is difficult to reconcile this decision with the working world in which we live. Whilst in some sectors recording the exact amount of hours which an individual works can be easily achieved, for example, through clocking in and out, the same cannot be said of others. Employees are consistently seeking greater flexibility from their employers and home, agile and flexible working arrangements are now commonplace. If an employee is responding to a couple of odd emails on the school run, questions arise such as how is an employer to know and how is that to be recorded?

Given where we are with Brexit, it will be interesting to see whether or not any steps are taken by the Government to amend the regulations to bring them in line with the ECJ’s ruling. Either way, when (or if) we leave the EU, we suspect that the laws in relation to working time will be one area under scrutiny.