Working time, record keeping and employee wellbeing
The role of good record keeping in promoting a healthy workplace has not been given the attention it deserves, writes David Mills, partner at Mills & Reeve LLP.
That may change following an important decision from the European Court of Justice which, by a happy coincidence, was published last month during Mental Health Awareness Week.
The ECJ’s decision came as a result of a dispute between four Spanish trades union and Deutsche Bank.
The unions claimed that the bank was not keeping adequate records of unpaid overtime worked by its staff. The ECJ ruled that there was an EU-wide requirement under Working Time Directive to maintain an “objective, reliable and accessible system” to measure working time. Simply recording the days each worker was in the office was not sufficient.
In the UK, the Working Time Regulations require employers to keep “adequate” records to show, among other things, whether the average weekly working hours limit of 48 hours has been exceeded.
This requirement has not been given a great deal of prominence in recent years, perhaps because it cannot be enforced by employees directly. Instead there are criminal sanctions for non-compliance, but prosecutions have been rare.
The days of clocking in and out each day may be over in most workplaces. But employers are still required to have an adequate system to monitor working hours, which needs to extend to home working and other types of flexible working.
Regardless of the risk of prosecution, employers must be able to identify employees who are working excessive hours or not taking their minimum rest breaks, since the associated risks not only to their productivity but also to their mental and physical health are well-known.