In the UK, under the Working Time Regulations 1998, for those workers who have not individually opted out of the statutory limit on weekly working hours, employers have to keep “adequate” records to show that workers are not working in excess of 48 hours a week and that the rules around night work are complied with. These records must be maintained for each applicable worker for two years. There is no specific requirement that employers keep a record of actual hours worked. Furthermore, the Regulations do not explicitly require employers to record data to show that daily and weekly rest periods are met. However, a recent European Court of Justice (“ECJ”) ruling states that employers are obliged to keep a record of actual hours worked by their staff in order to demonstrate compliance with the Working Time Directive in respect of the limit on maximum weekly working hours and the minimum required rest breaks. In that case, the ECJ held that, in the absence of a record of the time worked each day by each applicable worker there is nothing to evidence compliance with the legislation.
Amendments to the Working Time Regulations 1998 would be required to meet the more detailed level of record keeping set out in this ruling. Whether or not the Government will introduce legislation to amend the Working Time Regulations that apply in the UK to ensure they comply with the European Working Time Directive in light of this European decision remains to be seen. For now, although this ruling has direct effect for public employers and will continue to bind UK courts after the UK leaves the European Union, employers in the private sector are not required to amend their standard of record keeping, unless or until such time as amending legislation is passed by the UK parliament.
Under UK legislation, the average number of hours worked by a worker in any week is calculated by adding together the hours (including overtime hours) worked by that worker during the period of 17 weeks ending with that week, and by dividing that total number of hours by 17.
If this produces a figure of 48 hours or less, the employer has complied with the worker's statutory right not to work more than an average of 48 hours a week.
The Health and Safety Executive and local authority environmental health departments enforce the weekly and nightly working time limits. Sanctions can include criminal penalties such as conviction, fine and imprisonment. Workers who are denied statutory rest breaks or holidays, in breach of their statutory rights, may also bring a claim for compensation in an employment tribunal.
As always, if you have a legal query please get in touch with the FSB Legal Helpline on 0345 0727727 and we'll be happy to assist you.