Wake-up Call

For a while it seemed that the suppliers of time and attendance systems were missing a tremendous opportunity. Many companies already benefit from the data collected when their employees start and finish work, or change jobs during the day. Now, thanks to European Directives, all employers have a statutory obligation to keep records of their employee's working time. Yet, last October, when the Working Time Regulations 1998 (WTR) became law, few time and attendance developers had even begun to consider the implications for their clients and the enormous marketing potential that they offer.

The situation is changing. And there was good reason for the slow start, as we shall see.

First of all, we need to understand the record-keeping requirement set out in the WTR. Compliance with most of the Regulations is the responsibility of the Health and Safety Executive (HSE) or, for some business sectors, their local authority Environmental Health Departments.

The provisions of the WTR that come within the scope of the HSE and local authorities are
• the average weekly working limit
• the average night working limit
• health assessments for night workers
• the general requirement to provide rest breaks
• the keeping of adequate records

The HSE and local authorities have no jurisdiction over the remaining provisions of the WTR, namely
• daily and weekly rest periods
• rest breaks
• paid annual leave

Grievances related to these provisions may be heard by an employment tribunal.

Keeping score

The record-keeping requirement of the WTR matches precisely this split in the enforcement responsibilities. Employers must keep records that are adequate to demonstrate compliance in those provisions over which the HSE or local authorities have jurisdiction. There is no matching requirement for employers to keep records related to those aspects of the WTR that may be referred to an employment tribunal.

The difficulty for employers is that the WTR do not define the nature of the records that must be kept, only that "an employer shall take all reasonable steps" to ensure compliance. The Department of Trade and Industry (DTI), in its Guidance booklet for employers says "It is for the employer to determine what records need to be kept. The employer may be able to use existing records maintained for other purposes, such as pay, or they may need to make new arrangements as appropriate."

Does this mean that complex analyses of working time are needed? The DTI Guidance states "An employer is not required to keep a running calculation of workers' average weekly working time." It is true that the Regulations do not stipulate such a requirement. The DTI sensibly suggests that where hours are not recorded because workers have contractually-defined standard working hours, it may only be necessary to have the management controls in place to ensure that the standard hours are not exceeded.

However, it then goes on to say "The employer would need to ensure that their means of monitoring workers' working time would be adequate to highlight instances of workers working in excess of the standard working hours. The employer may need to monitor the hours worked by such workers more closely, or adjust the work they are asked to do, to ensure compliance." It is hard to see how the need to adjust working patterns could be identified without keeping "a running calculation of the workers' average weekly working time".

It is the DTI that introduces the concept of "monitoring" as a means of ensuring compliance, and realistically suggests that the level of monitoring may be more extensive for vulnerable workers. The evident problem with "monitoring" is that it only tells you what has already happened and may serve only to tell you, when it is too late, that you have broken the law. By suggesting that, where workers work extra hours, it may be necessary to "adjust" their working patterns, the DTI is really describing "managing" working time, rather than "monitoring". The Concise Oxford Dictionary defines the verb "monitor" as "maintain regular surveillance over", without implying the taking of any action.

Waiting for the call

The suppliers of time and attendance products are now actively promoting their systems as the ideal method of "managing" working time, as opposed to monitoring by simply producing reports from the accumulated time data. For example, Mike Hawkesford, managing director of Crown Computing, believes that managing the Regulations is not just a matter of looking backwards. "You need to able to look forward too," he says. "This means being able to highlight potential violations before they happen. An automated time recording system can provide detailed reports of hours worked and breaks taken by each individual, highlight any danger areas, which can then be dealt with before the Regulations are contravened."

The level of functionality required to fully "manage" working time is only just beginning to appear in the latest versions of the T&A systems on the market. Why has it taken so long? The main reason was the uncertainty caused by the absence of any precise definition of the nature of the records that should be kept. Most systems have, therefore, been developed in stages, to reflect the differing demands of customers.

Keith Statham, managing director of Kronos Systems, describes the evolution that their system has undergone. "The first phase was to meet the record-keeping requirement, by providing a history of working hours and breaks, and a basic monitoring facility that allowed the data to be summarised after 17 weeks. The second phase, based on feedback from our customers, was to provide 'exception-based reporting', which alerts or warns employers of any individuals who are close to exceeding the limits.

"Our third phase," Keith Statham continues, "is the full management of working time, taking advantage of the scheduling capacity of our system. For example, the hours of individuals or groups of workers over the coming four weeks can be planned by taking into consideration the hours they have worked in the previous thirteen weeks."

Although there is clearly a need to "manage" working time, this cannot simply be achieved by an automated system. Chris Webster, managing director of Data Collection Systems, makes a telling point. "An effective T&A system will accurately report the facts so that a company has the opportunity to take corrective action. But, however good the system, it will not prevent the company from working outside the limits. The system controls must be supported by internal management controls to ensure that workers are not given work outside of the hours scheduled for them."

Number-crunching

Another issue that has been occupying the minds of the T&A suppliers is how the management capability of their systems can be extended to groups of employees who do not "clock-in" in the traditional sense. Tristan Spencer, business development director for Smart PeopleTime, explains that most businesses do not expect professional and white-collar workers to clock in and out. "The preferred approach is for the individuals to take personal responsibility for recording their working hours by keying them in through their computer screens. The T&A system may be made available at the employee level, or the details may be collected using the Internet or an Intranet. Where everyone does not have a PC, employees can enter start and finish times using one of a number of dedicated 'kiosk' PCs located throughout the business."

Other alternative and culturally acceptable approaches to time data collection are the use of the telephone to speak or key in times and periods worked and, as recently announced by Kronos, the collection and sharing of time data using Microsoft Outlook.

Another problem faced by T&A suppliers is the flexibility provided by the WTR to vary many of the statutory rules. Systems typically come with a range a parameters that may be set by each organisation to reflect its own circumstances. Some of the permitted variations are:
• varying the length of reference periods
• defining the types of work that may or may not be working time
• recording those workers who have opted-out of the 48-hour working limit
• recording those night workers whose working hours are limited to 8 on any night
• varying daily and weekly rest periods

Flexible management

The need for flexibility also reflects a variety of misunderstandings and opinions over how the Regulations should be applied. For example, David O'Brien, managing director of Elf Productivity, says, "Many companies still believe that if employees opt-out of the 48-hour week, they don't need to keep any records, but that is not so. Full records must still be kept for these workers." Another example is the way that absences during a reference period are handled when calculating the average hours worked. "Because our clients have their own interpretation of the rules," he explains, "we allow parameters to be set that permit the additional weeks needed to complete the seventeen weeks to be taken either from the period preceding the reference period or from the period following the reference period." (Regulation 5 clearly states that the time must be taken from the subsequent period.)

Despite uncertainties surrounding the rules and the individual requirements of clients, the T&A developers are releasing enhancements to their systems that provide employers with a valuable method of managing the working time of their employees and complying with statutory working limits. Recognising that the obligations imposed by the WTR span all business sectors, not simply those that already have obvious applications for time recording, the developers are providing systems that allow for time data capture to be achieved by a number of imaginative and acceptable methods.

For employers who believe that their obligation to maintain records that adequately demonstrate compliance with the WTR cannot simply be met by "monitoring", T&A offers a powerful tool for "managing" working time.