A recent decision by the ECJ has highlighted another area where UK employment law is inconsistent with European law. This follows on from earlier cases that flagged discrepancies between the calculation of holiday pay under the Working Time Directive and the UK Working Time Regulations.

In this most recent case the ECJ has held that an employer is under an obligation to set up a system to record the actual number of hours worked each day by its workers, to enable compliance with working time limits to be verified. Whilst the employer would have some discretion as to how the system is set up the ECJ stated that it should measure the time worked by workers each day and provide access to objective and reliable data. This would then allow workers as well as competent authorities and national courts to check whether working time limits set down in national legislation and collective agreements were properly being adhered to, or had been infringed. The ECJ concluded that in the absence of such a system Member States could not ensure compliance with working time limits set out in the Working Time Directive and the EU Charter of Fundamental Rights.

In the UK regulation 9 of the Working Time Regulations (WTR) requires employers to keep ‘adequate records’ to show whether weekly working time limits and the time limits on night working are being complied with; failure to do so is a criminal offence. However this requirement does not cover daily or weekly rest and does not require all hours to be recorded.

Should UK employers make any changes to the way they record the hours of UK workers in light of this decision?

The Health and Safety Executive (HSE), rather than individual workers, is responsible for enforcing the requirement for employers to take reasonable steps to keep adequate records for the purposes of the WTR. In short we recommend that UK employers consider waiting until the HSE has issued revised guidance on this before making changes to their record keeping arrangements.

The UK government intervened in this case and argued against the outcome reached by the ECJ. Now that the WTR do not appear to comply with the implementing Directive then technically the UK should amend the Regulations to make them compatible, and could face infringement proceedings from the Commission if they fail to do so. However, given the government’s opposition to this decision and the prospect of Brexit it seems unlikely the government will amend the WTR in the short term.

There may be scope to argue that the outcome reached by the ECJ should have direct effect now in the public sector or that the WTR should now be interpreted in line with it. Again, in practical terms we recommend that UK employers consider waiting until the HSE has issued revised guidance before making changes to their record keeping requirements.