Richard Grogan: The importance of working time records
Employment law solicitor Richard Grogan of Richard Grogan & Associates the importance of often-overlooked working time records.
The issue of working time records arose in case ADJ-00028251. The Adjudication Officer in this case quoted the provisions of section 25 of the Organisation of Working Time Act 1997 but also, importantly, the case of Rezmerita Limited -v- Uciechowska DWT1018, where the Labour Court held:
“Where statutory records are not being obtained the employer is faced with the burden of rebutting what is in effect a presumption of non-compliance. It is the experience of the court that, in practice, this is often a heavy burden which cannot be easily discharged where there is contradictory oral testimony and an absence of reliable corroborative evidence.”
In this case, there was a marked conflict in the evidence tendered on behalf of the respondent as against that given by the claimant in relation to all material issues. There was also an absence of any primitive independent corroboration on either side. The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities.
In Miller -v- Ministry for Pensions 1947 2ALL ER372, Denning J explained in relation to this standard of proof that: “If the evidence is such that the Tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not”.
The case of Circus Gerbola Limited -v- El Mostafa Chtabbou MWD1211 is one where the court outlined the approach in respect of the burden of proof as follows and referred to the case Jakonis Antanas -v- Nolan Transport:
“What that means of practice is that the respondent must satisfy the court that it is more probable than not that the act was complied with in respect of the matters complained of by the claimant. If the respondent does not do so or if the probabilities are equal the claimant will succeed. That is a reversal of the normal rule of evidence which requires that he who has certs must prove”
The employee in this particular case did not give any evidence. What is interesting is the case of case C-55/18, commonly known as the Deutsche Bank SAE case, was not referred to. That is a case which has said that to encourage improvement in the health and safety of workers at work that the Working Time Directive must be interpreted as precluding a law of a member state that, according to the interpretation given to it in national case law, does not require employers to set up a system enabling the duration of time work each day like each worker to be measured. That case also is one where the CJEU said:
“In that regard, the introduction of an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured falls within the general obligation, for member states and employer, laid down in Article 4(1) and Article 6(1) of Directive 89/391 to provide the organisation and means necessary for the protection of the safety and health of workers. That decision also referred to Article 31 (2) of the Charter of Fundamental Rights of the European Union that it was necessary to have such records for all workers so as to ensure the effectiveness of Directive 2003/88. The issue of whether this would be an excessive cost was rejected by the CJEU. The CJEU in that case stated:
“‘Consequently, in order to ensure the effectiveness of those rights provided for in Directive 2003/88 and of the Fundamental Rights enshrined in Article 31 (2) of the Charter, the 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 this case there were no records. There were limited records. The claim failed. However, it would be our view that once the Deutsche Bank case starts to be significantly quoted that employers who do not have records are going to be in difficulties.
There is an argument that an employee cannot simply sit on their hands. In effect the Deutsche Bank case is pretty close to an assertion that that’s exactly what an employee can do and that it is imperative that employers have the right records because failure to have them will and can result in claims that can be pursued once European case law is quoted.
The issue of the interpretation of section 25 of the Organisation of Working Time Act is at some stage going to end up going to the CJEU.