The government has responded to the consultation on reforms to retained EU employment law and the consultation on the Working Time Regulation record keeping requirements. .
They will legislate to introduce reforms to the working time regulations.
In brief, the government propose to reform or introduce the changes to
- reduce time-consuming reporting requirements under the Working Time Regulations (WTR)
Regulation 9 of the WTR provided that employers must keep adequate records to demonstrate compliance with certain aspects of the WTR, including the maximum weekly working time, length of night work, and provisions requiring health assessments being offered to night workers.
However, a 2019 judgment of the Court of Justice of the European Union (Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE) (“CCOO case”) ruled that employers must have an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured. This case held that records must be kept in relation to the right to a minimum daily rest period of 11 consecutive hours in each 24-hour period; the right to a minimum uninterrupted period of rest of 24 hours in each seven-day period; and the limit on the maximum weekly working time.
The Government believes that requiring employers to record the duration of time worked each day by each worker via an objective, reliable and accessible system is disproportionate, particularly while the economy is recovering from the impact of the Covid-19 pandemic and the impacts of war in Ukraine.
This does not give workers new substantive rights, and we believe in many cases such an obligation on employers to record the duration of time worked each day by each worker would be damaging to relationships between employers and their workers.
The statutory instrument is to remove the uncertainty and the potential high cost of implementing a system of recording working hours and provide legal clarity on the record-keeping requirements in the WTR.
The effect of this instrument is that the record-keeping obligations of employers under regulation 9 of the WTR are not as provided by the decision in the CCOO case.
When do these come into force? A draft statutory instrument indicates a proposal to implement at break kneck speed on 1st January 2024. Until then, the current law remains the legal position.
Employers now have a short period of review and where change is to be implemented, initiate changes.
The following adapted table from the government consultation response shows each of the original proposals by question and the next steps the government are proposing to take:-
|REUL||Removing the uncertainty for employers about their record-keeping obligations||The government intends to remove the uncertainty and the potential high cost of implementing a system of recording working hours and provide legal clarity on the record-keeping requirements in the Working Time Regulations.|
Whilst this change potentially removes some of the burdens for recording working time and the need for what may be expensive time recording systems, there remain the requirement for employers to have sufficient records for National Minimum Wage compliance. Also the HMRC are proposing that employers must report working time data on the regular FPS removing the former banding selections with the numeric hours worked now being required. Some may view this change and other legal requirements as a catch 22.
PAYadvice.UK 9/11/2023 updated