22 May 2019 
Caroline Jones, Employment tax director
The ECJ has held that the Working Time Directive requires employers to set up a system which records the actual number of hours worked by workers each day in order to ensure the limits set out in the Directive are actually observed and that workers are able to exercise their rights.
This decision appears to impose greater obligations on employers than those currently required. If workers have not opted out then their UK employer must keep records that are ‘adequate’ to demonstrate compliance with the 48-hour average working week. There is no requirement to keep records in relation to rest breaks and rest periods. The format for any records has not been specified.
The government intends that when we leave the EU all EU employment rights will be restated into UK law and so will continue to apply post-Brexit. It’s not hard to see how this rule could have a knock-on to National Minimum Wage. HMRC will be able to review such records in order to determine whether employees are being paid at least NMW.
