Are employers required to record employees' working hours?

Yes, The Organisation of Working Time Act 1997 (the 1997 Act) imposes an obligation on employers to keep detailed records of their employees' daily and weekly working hours. Employers are required to keep these records for three years from the date they are made. Failure to do so is a criminal offence.

When it comes to keeping records of employees' hours of work, the 1997 Act is to be read alongside the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 (the 2001 Regulations). The 2001 Regulations expressly requires employers to keep records of "the days and total hours worked in each week by each employee" and provide that, where no "clocking in" facilities are utilised or electronic records kept, employers are required to keep a written record of the days and hours worked in each week by each employee. A template form is included in the Schedule to the 2001 Regulations (the OWT1 Form). It is noteworthy that this template form expressly provides for the "Number of Hours worked by Employee Per Day and Per Week" (excluding meal breaks and rest breaks) to be recorded by the employer.

The obligation to keep records is necessary for employers to be able to demonstrate compliance with its other obligations under the 1997 Act. For example, employers are required to allow employees take the requisite rest breaks prescribed by the 1997 Act, and must not 'permit' an employee to work in excess of an average of 48 hours per week. Unlike in the UK, there is no ability for employees to 'opt out' of the maximum 48 hour working week.

The European position

The obligation set out in the 1997 Act was strengthened in May 2019 when the Court of Justice of the European Union delivered a judgment (Federación de Servicios de Comisiones Oberas (CCOO) v Deutsche Bank SEA C-55/18) confirming a duty on employers to ensure that they have an ‘objective, reliable and accessible system’ in place to record employees' working hours.

Notable points from the CJEU decision in the context of an employer's obligations are as follows:

• The Directive is intended to protect "the safety and health of workers by ensuring that they are entitled to minimum rest periods – particularly daily and weekly – as well as adequate breaks, and by providing for a ceiling on the duration of a working week".

• In the absence of a system enabling the duration of time worked each day to be measured, "it is not possible to determine objectively and reliably either the number of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours, as overtime".

• "The objective and reliable determination of the number of hours worked each day and each week is essential" to establish compliance with workers' rights under the Directive.

• "It is for the Member States, in the exercise of their discretion, to determine the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning their size etc."

• As regards costs associated with putting in place such a system, "the effective protection of the safety and health of workers should not be subordinated to purely economic considerations".

Is there any exemption available to avoid having to record employees' working hours?

There is an exception in the 1997 Act whereby employers who employ employees who can determine their own working hours are excluded from the obligation to record daily and weekly working hours and rest breaks. This exception is narrowly construed, as employees can in practice rarely be said to be in charge of their own working hours, and it would likely be difficult to legitimately categorise even very senior employees as employees who genuinely determine their own working hours.

How can employers comply with the 1997 Act?

In an effort to demonstrate compliance with the 1997 Act and the Directive, employers should:

• Ensure that they keep adequate records of working time of all employees that can be provided in intelligible form to the WRC in the event of an inspection

• Monitor those records so that incidents of employees working in excess of the hours prescribed by the 1997 Act are identified

• On becoming aware of employees failing to take sufficient breaks or working outside of normal business hours in excess of 48 hours per week, seek to address the issue with those employees

• Put in place a policy or guidelines whereby employees are informed of their rest break entitlements and are given guidance on appropriate working hours and email usage (a Working Time Policy).

Employers should also be cognisant of the Irish Statutory Code of Practice on the Right to Disconnect (the Code) which came into effect in April 2021. Whilst the Code does not introduce a legal right to disconnect, it does make clear that there is an onus on employers to ensure employees can disconnect and outlines the potential adverse consequences for them if they do not. Recording of working hours is a key element in implementing the advice set out in the Code.

Employers might wish to incorporate some of the recommendations/advice contained in the Code of Practice on the Right to Disconnect into their Working Time Policy, for example, on expectations when it comes to working outside normal working hours and/or the importance of employees respecting their colleagues' right to disconnect.

What are the consequences of not complying with the requirement to keep records?

Regulatory fine: an employer who fails to keep records shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,500. Where an employer has not retained records for a number of employees, there is a risk that an employer could be charged with multiple offences resulting in a fine in respect of each employee.

Compensation order: the other issue for employers is that when faced with a claim involving an alleged breach of the 1997 Act, the evidential burden of proof in demonstrating compliance with the Act rests with the employer. In essence, it is up to the employer to show that they comply with the 1997 Act.

Where an employer cannot produce records showing full compliance to defend a claim, then it will be extremely difficult to rebut the case and an award of compensation of up to two years' remuneration may be ordered.