U.K./EU: The U.K. and EU are parting ways on recording of work time

Employer Action Code: Monitor

Germany and Denmark have introduced draft legislation to implement the European Court of Justice (ECJ) 2019 ruling that all European Union (EU) 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.” In sharp contrast, the U.K. is planning to introduce legislation to clarify that such an explicit requirement will be excluded from its retained EU law.

Key details

• The draft bill in Germany follows on a surprise ruling of the Federal Labor Court in 2022 (see this Global News Brief: Germany: Employers must record employees’ working time). Draft bill provisions include:
• Employers must record the start, end and duration of daily work time electronically (e.g., via spreadsheets) on the day the work is performed (or within seven days if so provided under a collective labor agreement) and retain records for two years. Employers may delegate recordkeeping to employees but remain responsible for the data and must check the records at least randomly. Employees may request a copy of their recorded work time, and Works Councils may inspect work time records. Exemptions may apply for certain employees identified in collective agreements or in other groups (the draft bill mentions “executives, prominent experts and scientists”).
• Employers with more than 250 employees would have one year to comply; those with 51 to 249 employees would have two years, and those with under 50 employees would have five years. Employers with up to 10 employees may maintain non-electronic records.
• Trust-based working time arrangements (i.e., where employees arrange their work schedules and the employer specifies only the total weekly or monthly work time) remain possible, but employers must take measures to ensure that they are alerted to any violations of statutory work time rules (e.g., minimum rest periods).
• The draft bill in Denmark is less prescriptive on the form of time recording, though it does address certain possible exceptions to existing work time rules and has a proposed implementation date of July 1, 2024.
• Employers must have a system for recording daily work hours that is "objective, reliable, and accessible" and keep records for five years.
• Depending on the circumstances, employees may be exempt from certain maximum work time rules and the recording of work time if they can determine their own work schedule and can make independent decisions or have managerial authority.
• The U.K. government stated in its November 2023 response to a public consultation that it will introduce legislation to remove the effects of the 2019 ECJ ruling and thereby remove the risk of “increased requirements on businesses to keep records that were disproportionate to the cost, administrative burden and the effect on workers.” Employers will remain subject to existing U.K. Working Time Regulations, which require employers to, among other things, keep adequate records to demonstrate compliance with maximum weekly working time and length of night work rules. The planned legislation will clarify that employers need not record daily working hours of their workers for the purposes of the Working Time Regulations if they are able to demonstrate compliance without doing so.

Employer implications

The bills highlight the different regulatory approaches that arguably contributed to the U.K.’s decision to leave the common market, with the U.K. government favoring a “lighter” regulatory framework in response to the ECJ ruling in contrast to the more prescriptive regimes proposed by the German and Danish governments. Judging by the slow progress of the German legislation and little evidence of the development of similar bills by other EU governments in response to the ECJ ruling, there appears to be limited enthusiasm for closer regulation of the recording of working time. That said, employers across the EU are advised to evaluate their time-recording policies in anticipation of such requirements being adopted more broadly across the EU.