Is it Time to Re-introduce the Clock Card System?
Some organisations will already operate a clock card system or a similar, more technological method such as a swipe card system, for recording hours worked by employees. However, there will be a number of organisations that do not record the hours that are worked by their employees, for a variety of reasons; and it is for those organisations/employers that this Information Update is targeted.
Earlier last month, the European Court of Justice held that, in order to comply with the provisions of the EU Working Time Directive on maximum weekly working time and daily and weekly rest, employers are obliged to set up a system for measuring actual daily working time for individual workers.
In Great Britain, the Working Time Regulations 1998, (which implement the European Working Time Directive) impose a requirement on employers to maintain 'adequate records' demonstrating whether the weekly working time limits and the night work limits are being complied with; but it does not require recording of daily or weekly rest and it does not specifically require all hours of work to be recorded. Guidance from the Health and Safety Executive (HSE) states that specific records are not required and that employers may be able to rely on existing records maintained for other purposes, such as pay, in order to meet their obligations.
The case before the European Court of Justice:
A Spanish workers' union (Federación de Servicios de Comisiones Obreras (CCOO)) brought an action before the National High Court in Spain seeking a declaration that Deutsche Bank SAE was under an obligation to set up a system to record the actual number of hours worked each day by its staff, making it possible to check that the working time limits laid down in national legislation and collective agreements were properly adhered to. The bank used an Absences Calendar which only permitted the recording of absences for full working days (annual leave, sick leave etc.). Actual hours worked on a particular day were not recorded.
The Spanish court asked the ECJ whether the Directive and/or Article 31(2) of the EU Charter of Fundamental Rights imposes such an obligation.
The ECJ concluded that in order to guarantee employees' rights under the EU's working time directive and the charter of fundamental rights, member states "must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured."
The court added that EU member states (which the UK currently remains at the moment) would have to determine specific arrangements for the implementation of such systems themselves, while taking into account, where applicable, of any national or industry specific peculiarities.
Without a system to record working hours, the court said, employees could not reliably determine the length of their working hours or rest periods, making it "excessively difficult, if not impossible in practice, for workers to ensure that their rights are complied with."
What does this mean?
The ruling could have far-reaching consequences.
It is for member states to decide the specifics. Consequently, we await to see if the UK Government introduce an amendment to the Working Time Regulations specifying what employers need to record.
Given the Government and politics is dominated by Brexit, it is ironic that the Government are having to introduce legislation to implement a ruling from the European Court of Justice. Does this give ammunition to the Brexiteers? Probably not, given that there seems to be a consensus that workers’ rights should be protected and maintained going forward - we will see!
What it does mean is that Employers are going to have to review how they record start and finish times, and rest periods, including who will maintain the records and how the information will be collected. The information will apply to all workers – factory / office workers, shop workers, drivers, peripatetic workers, home workers etc.
As the title suggests one way to do this would be to introduce the old ‘clocking in system’ – these have come a long way since days of old. Gone are the times when workers had to punch a card to register their arrival at work and when they depart. There’s now a huge range of mobile, dynamic employee clocking in systems with their own intuitive timesheet software. Modern clocking in systems do much more than monitor time and attendance; they can provide a flexible solution that works hand in hand with your payroll, lets you plan rosters with ease while tracking overtime and holiday requests.
Less costly solutions may be introducing time sheets or signing in protocols particularly in areas where previously working hours have not been recorded.
Whilst not all employers will welcome the changes that are likely to be required as it may be burdensome. On the flipside it might highlight timekeeping issues; so there may be a ‘silver lining’ for employers, as it might result in employees actually turning up for work on time, given the requirement (by EU law) to implement a time recording system!