A UK company was fined £54k (including £24k costs) for health and safety breaches which directly contributed to the death of an employee in a road traffic collision. Briefly the facts leading up to the fatal sequence of events included the driver working 11 days without a break, and three days before the accident had recorded 19 hours a day. Evidence was presented to show this was not an isolated incident and involved other employees.
Opting out of legislation e.g. European Economic Community Working Time Directive (EECWTD) does not mean you opt out of health and safety issues or duty to exercise care. This catches a lot of employers out. Recording working hours for payroll is a post event process for accounting. It has nothing to contribute toward exercising a duty of care. In short a company that wishes to discharge a duty of care has to demonstrate working hours are planned and scheduled not simply recorded. Scheduled work hours can be used for payroll, but not the other way round.
The irony is companies who say they use payroll records for working hours management when things go wrong probably don’t realise these records are the first port of call for the prosecutor not the defence.