The European Court of Justice (ECJ) has decided that, Member States must require employers to set up an “objective, reliable and accessible system enabling the duration of time work each day by each worker to be measured” to ensure compliance with the maximum weekly working time and daily and weekly rest. The ECJ considered that it was not possible to determine objectively and reliably, either the number of hours worked and when that work was done, or the number of hours of overtime worked without a system in place that enabled the duration of time worked each day by each worker to be measured. Consequently, making it excessively difficult, if not impossible in practice, for workers to ensure that their rights are complied with, and could compromise the Directive’s objective of protecting workers’ health and safety.
Regulation 9 of the Working Time Regulations 1998 (WTR) requires employers to keep “adequate records” in Great Britain to ensure compliance with the 48-hours limit on the average week and to protect night workers. However, there is no specific requirement for all daily hours of work to be measured and recorded, nor is there any mention of recording daily or weekly rest periods. Health and Safety Executive (HSE) guidance states that there is no requirement to keep specific records and that employers may be able to rely on records maintained for other purposes, such as pay. The ECJ's judgment raises serious doubt as to whether the record-keeping rules in Great Britain comply with the Directive's requirements.