The Working Time Regulations 1998 stem from European law, the Working Time Directive. The Regulations put limits on the number of working hours a worker can do in a week. They also specify a minimum amount of paid annual holiday for workers as well as daily and weekly rest requirements.
Regulation 9 requires an employer to keep ‘adequate’ records to show they are sticking to the 48-hour weekly working limit, and to protect night workers. The Health and Safety Executive guidance says employers do not need to create specific ‘working time’ records. They can use existing systems to monitor working hours, such as systems relating to pay.
In CCOO v Deutsche Bank, the Court of Justice of the European Union (ECJ) said that Member States must require employers to set up organised systems to accurately measure working time in order to comply with the Working Time Directive. These systems must be objective, reliable and accessible. The ECJ said that without such systems, workers could not ensure their rights were being complied with.
This case casts doubt on whether our current rules on record keeping comply with the Working Time Directive. This is because the rules do not specifically require all daily and weekly hours of work to be recorded. Employers should watch this space to see what additional guidance is given by the HSE and the courts in future.