Working Time Regulations: is it time for a change?

We've all heard quite enough about EU regulations in the past couple of years, but, like it or not, we're still in the EU, so we still have to follow the rules!

If you're a UK employer, you'll know all about the Working Time Regulations (WTR). They were introduced in 1998, to implement the EU's Working Time Directive (WTD) in the UK.

Under the WTR, certain restrictions are placed on hours of work. The most well-known of these is that workers can't be required to work more than average of 48 hours each week. Most employees can opt out of this restriction if they want — and many employers ask employees to sign opt-out agreements along with their employment contracts.

But there are plenty of other WTR rules that employers and employees can't opt out of, including:

• A minimum daily rest period of at least 11 consecutive hours.
• A minimum rest break of 20 minutes during any working day that's longer than six hours.
• A minimum weekly rest period of at least 24 hours.
• Night workers shouldn't work more than an average of eight hours in a 24-hour period.

There are all sorts of exceptions to these rules for various different roles, sectors, and shift patterns.

Keeping records

The current rules mean that employers have to keep some records to comply with the WTR, like weekly working time, the length of any night work, and the names of workers who have agreed to opt-out of the 48-hour week. Whenever an average figure is needed, it should be calculated over a 17-week reference period.

It's these record-keeping requirements that have come under the spotlight following a case in the European Court of Justice (ECJ).

What's changed?

A Spanish workers' union took on an arm of Deutsche Bank in the ECJ to find out if the bank was required to record workers' actual daily working hours, to make sure they were following WTD rules.

The court found that it would be very difficult to reliably measure daily hours worked without having a recording system in place.

That means that employers in the UK and all other member states must set up an 'objective, reliable and accessible system' for measuring the time worked each day.

In other words, companies will now start having to record daily hours worked accurately, alongside previous obligations like recording working hours.

When do I need to make changes?

No one's really sure.

At the moment, the UK's implementation of the WTD, the Working Time Regulations (WTR), doesn't require companies to record daily hours or breaks — payroll data is seen as good enough.

Under normal circumstances, the UK government would update the WTR to take into account the ruling, but if and when we leave the EU, this update would no longer be required — so it's not really high on the government's priority list.

Employers don't need to worry about their employees pushing back because of this new ruling. The rules fall under 'regulation 9' — it's the Health and Safety Executive (HSE), not employees, who can enforce this regulation — so there's no risk of an employment tribunal if you don't follow the rules.

So what should I do?

If you're reluctant to start recording daily hours until you're required by law, hold off for now and wait until HSE update their guidelines, and keep an eye on any potential changes to WTR — it's likely there will be some noise in the press about if and when this happens!

But before you switch off, think about why these changes are being suggested in the first place: to make sure that staff aren't being overworked, and are being paid fairly.

We hope that most employers would argue that both these objectives are worth investing in! And if we're still in the EU after October 31st, the odds of the WTR being amended increase significantly. Getting ahead of the curve with a system for tracking daily hours could be a good idea.