Clocking In – Legislation, HR and Employee Rights

You’re currently tracking time and attendance in your business using one method or another. Perhaps you’re considering upgrading your clocking in systems in the hope you’ll improve productivity, or perhaps it’s because you want to be confident you’re compliant with the latest legislation. We investigate the topics you need to be aware of when it comes to clocking in, legislation and employee rights.

 

Which UK Laws Are Relevant to Clocking-In Systems?

When implementing clocking-in systems, UK businesses must adhere to several key legal requirements to ensure compliance and avoid potential fines. These laws primarily encompass data privacy, working hours, and overtime regulations.

Data Privacy Laws

The UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 are critical when handling employees’ personal data through clocking-in systems. These laws mandate that personal data must be processed lawfully, transparently, and for a specific purpose. Employers must ensure that any biometric data or personal information collected by clocking-in systems is securely stored and used in compliance with these regulations. Read more around Data Privacy considerations and recent judgements by the ICO here.

Working Hours and Overtime Regulations

The Working Time Regulations 1998 are critical in governing working hours, rest breaks, and annual leave entitlements for employees in the UK. These regulations ensure that workers are not overworked and have sufficient rest, thus promoting their health and well-being. Here are specific aspects of these regulations which apply to clocking in and the need to have an effective way to accurately track and prove your compliance.

 

Maximum Working Hours

Employees should not work more than an average of 48 hours per week, averaged over a 17-week period, unless they have voluntarily opted out of this limit. Employers must ensure that workers do not exceed this limit to comply with the law.

Example A manufacturing company was fined £50,000 after an investigation revealed that several employees were regularly working over 60 hours a week without having opted out. The company failed to manage and monitor working hours adequately, resulting in a significant breach of the Working Time Regulations.

 

Rest Breaks

The regulations mandate that employees are entitled to:
– A 20-minute rest break if their working day is longer than six hours.
– A minimum of 11 consecutive hours of rest in any 24-hour period.
– At least one day off in each seven-day period, or two days off in a 14-day period.

Example: A retail chain was fined £30,000 for not allowing employees to take the mandatory 20-minute breaks during long shifts. The company’s scheduling practices were found to consistently deny workers their legal rest breaks, violating the regulations.

 

Annual Leave Entitlements

Employees are entitled to a minimum of 5.6 weeks of paid annual leave. This leave must be taken and cannot be replaced by payment in lieu, except upon termination of employment. Annual leave days should be tracked and records kept.

Example: A hospitality firm was penalised £40,000 for not providing the legally required annual leave. Many employees were coerced into working throughout the year without being given the opportunity to take their holiday entitlements.

 

Overtime Rules

While there is no statutory right to overtime pay, any overtime worked must not breach the average weekly working hours limit. Overtime must be calculated and monitored to ensure compliance with the overall working hours regulation.

Example: A logistics company was fined £35,000 for failing to pay employees correctly for overtime and for not keeping accurate records of overtime hours. The company’s practices led to employees working excessive hours without proper compensation or time off.

 

Record-Keeping Obligations

Employers are required to keep accurate records of working hours to demonstrate compliance with the Working Time Regulations. These records must be kept for at least two years and should include details of hours worked, breaks taken, and annual leave.

Example An IT firm faced a £25,000 fine for not maintaining adequate records of employee working hours. During an audit, it was discovered that the company had no reliable system in place to track hours, breaks, or leave, leading to multiple breaches of the regulations.

 

In summary, as an employer, your legal responsibilities include:

• Complying with the maximum working time limits and ensuring that employees do not exceed the average 48-hour limit unless they have voluntarily opted out.
• Providing adequate rest breaks and ensuring that employees have sufficient daily and weekly rest periods.
• Ensuring that employees receive their annual leave entitlement and that it is paid appropriately.
• Protecting the health and safety of night workers and providing the necessary assessments and safeguards.
• Maintaining accurate records to demonstrate compliance with the WTR.

It is important to note that the specific requirements and exemptions under the Working Time Regulations may vary depending on the circumstances and industry. It is advisable to consult the UK government’s official guidance or seek legal advice to ensure full compliance with the regulations in your particular situation.

 

The Working Time Regulations 1998 are essential for protecting employees’ rights and ensuring their health and safety. By adhering to the regulations on maximum working hours, rest breaks, annual leave, and overtime, businesses can avoid substantial fines and foster a compliant and supportive work environment. Accurate record-keeping is a crucial aspect of demonstrating compliance and avoiding legal repercussions.

 

Can biometric clocking in reporting records be used for HR disciplinary purposes?

The use of biometric time reporting systems for HR or disciplinary investigations can be a sensitive topic, and it may depend on the specific legal and regulatory framework in your sector. Here are some general considerations:

Privacy and data protection: Biometric data, such as fingerprints or facial recognition, is considered sensitive personal data in the UK and Ireland and therefore is covered by the GPDR (and UK GDPR). Before implementing biometric systems for HR or disciplinary purposes, you must ensure compliance with applicable data protection laws and regulations. This includes obtaining informed consent from employees, providing an alternative method of clocking in if they object to using biometric criteria, implementing appropriate security measures to protect the biometric data, and adhering to data retention and deletion requirements. It’s vital that a privacy impact assessment is conducted, this will detail the business case for implementing biometric clocking in.

Legal requirements and proportionality: The use of biometric systems for HR or disciplinary investigations should be necessary, proportionate, and in compliance with relevant employment laws. It’s important to conduct a privacy impact assessment detailing the business case for biometric clocking in and the collection, storage, and use of biometric data.

Policy and transparency: Clearly communicate to employees the purposes for which their biometric data will be used, including any potential use for HR or disciplinary investigations. Develop and implement policies that outline the procedures and safeguards in place for handling and accessing biometric data.

Consent and employee rights: Obtain explicit and informed consent from employees before collecting and using their biometric data. Employees should have the right to refuse or withdraw consent without facing adverse consequences. This would involve there being an alternative method to clock in if they object, such as a unique code or card. Additionally, ensure that employees have access to their own biometric data and understand their rights regarding its use.

Alternative investigation methods: Consider whether there are alternative methods for conducting HR or disciplinary investigations that do not rely on biometric data. Biometric data should only be used when it is necessary and reasonable for the investigation, and less intrusive methods may be more appropriate in some cases. Ultimately though, if you’ve complied with all of the above steps then you can use clocking in records in disciplinary investigations.

 

Can an employee refuse to use a biometric clocking in system?

Simply, yes, it’s different to access control where a compelling case can be put in the case of highly secure areas that biometric access control is the best and only method appropriate. With clocking in, an alternative option must be available for employees if they object to using biometric criteria to track their shifts. You must also get explicit consent from them when implementing biometric time tracking to be compliant with GDPR.

There have been some high profile cases in the UK recently, including Serco, who were fined for introducing a biometric time and attendance system without getting explicit consent from employees and for failing to give employees an alternative method of clocking in if they objected to using biometric criteria. You can read more around GDPR and staying compliant here.

As with any change which involves closer monitoring of employee movements, there will be resistance to change. Communication as to how the new system will benefit the employees themselves is vital to ensure good adoption. It’s much easier to clock in using your finger or face, it’s more fair as hours worked are accurate, and it can lead to greater transparency. Reassurance around data security can also go a long way to getting buy in from employees.

 

If you’d like advice on the best clocking in system for your business, please get in touch.

You can call us on 03335676677 (UK) or 016833368 (IRE), or send us an email.