Are employers breaching WTD if they don’t keep records of actual daily working time?

Q: Are employers in breach of the WTD if they don’t keep records of actual daily working time?

Scott: This question refers to the Spanish case of Federacion . . . I will not go through the rest. "Advocate General Pitruzzella has given an opinion that, under the EU Charter of Fundamental Rights and the EU Working Time Directive, employers are obliged to set up a system for recording actual daily working time for full-time employees or full-time workers who have not expressly agreed individually or collectively to work overtime. Is Northern Ireland legislation in breach of the directive and will we as employers be held to be in breach if we don't keep adequate records?"

Seamus: I'm a little disappointed you didn't try and pronounce that case. For anyone that's not aware of this case, this was, just very briefly, a Spanish trade union who sought a declaration from the bank that the bank was under an obligation to establish a system to record the actual number of hours worked per day by the bank's employees. Because the Spanish law wasn't consistent with EU law, it was referred to the ECJ.

The Attorney General has advised the court . . . so it's not bound at this time, but they've advised the court that the Spanish system makes it more difficult for the workers to enjoy the protection of their rights under the working time, and not the fundamental rights.

What the Attorney General has proposed is that the ECJ put forward basically a recommendation that this is what should be in place, that they should be recording the actual number of hours that the employees are working per day, unless they have an agreement or they're working overtime.

Scott: So, in effect, this is not dissimilar to a number of decisions that we've had from the European court, which is saying that people are entitled to holidays.

Seamus: Yes.

Scott: They're entitled to various rights under the working time regulations in the UK, and the directive at the European level, the Fundamental Charter, which has been incorporated into, is saying, "These are fundamental rights. If you don't get holidays, if you don't get breaks, if you are forced to do certain things, then you will get sick as an employee, and therefore employers have various obligations".

They have to allow them to take their holidays. They have to allow them to carry over if they're sick and can't take them and so on. Those cases have been coming through, all going forward in the direction in relation to annual leave.

This one seems to be going in a similar way. It says, "If you don't record the actual hours, it makes it much more difficult for employees to enforce their rights, and therefore it must be in breach of the charter". Is that basically it?

Seamus: That's correct. In terms of where Northern Ireland stands, we have our working time regulations, and Regulation 10 only requires employers in Northern Ireland to keep adequate records to prove the working time limits during the day and night. So, basically, workers aren't working over the 48 hours, for example.

There's no requirement on employers in our legislation to keep these detailed records. And we've spoken previously about the south and what they have. And we've looked at the Kepak case (Kepak Convenience Foods Unlimited Company v Grainne O'Hara [2018]) and how they are required to keep these really tight records that are subject to inspection. I do think if this is taken on board by the ECJ, it's open to challenge here.

In terms of what employers can do, it's good practice to be keeping these records in place. Like you said, employees need to have access to these rights. They're going to get sick if they don't have them. It's in the employer's . . . it's to their advantage that their employees are well and fit to work.

Scott: And that they can prove they have maintained the rights under the directive.

Seamus: Yes, 100%, or they end up in the case that you have these records to pull out.