Updated January 2024
What records do employers need to keep for the Working Time Regulations? Until May 2019, Employers in the UK needed to keep the following records :
- Records showing that the workers’ weekly working limit had been complied with; it’s up to the Employer to determine what records need to be kept for this purpose (i.e. using existing records maintained for other reasons such as pay, can be acceptable); Employers only need to keep “adequate” records.
- They don’t need to keep a running total of how much time each worker works on an average week.
- Employers need to make occasional checks on workers who do standard hours and are unlikely to reach the 48 hour limit.
- If workers are close to the working time limit of 48 hours per week, their Employers should monitor their hour.
- Employers need to keep records of the names of workers who’ve agreed to ‘Opt Out’ and can work 48 hours or more a week.
- Where there are Night Workers, Employers must keep a record of the name of each night worker, what date they had their health assessment and the result of that assessment.
- Records don’t need to be kept for rest breaks, days off and annual leave (although obviously most employers will keep annual leave records).
- Records must be kept for two years.
- These rules are enforced by the Health & Safety Executive. Employers that breach them can be prosecuted or fined under criminal law.
However, in May 2019, the Court of Justice of the European Union (CJEU) delivered an important judgement in the case of CCOO v Deutsche Bank SAE. CCOO are a Spanish trade union who wanted a system for recording how long its members actually worked each day (including overtime) so it could check the actual hours complied with their members written working conditions. Under Spanish law, employers then (it has changed since, see below) only had to keep a record of overtime hours worked each day by each worker, rather than all the hours they actually worked. The Court was given evidence that nearly 54% of all overtime was not recorded.
The CJEU said that all workers had a fundamental right to limit their working hours and to take adequate rest, and the only way to ensure that these rights were met was to accurately record all the number of hours worked and when it was done (including overtime).
Therefore, all 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”. This ruling appears to apply to all workers, even those whose time is unmeasured or those who have opted out of the maximum working week.
This decision is binding in the UK and affects all employers. However, the decision goes further than the UK’s Working Time Regulations require at the moment, but UK employment tribunals must interpret the legislation in accordance with CJEU decisions. Therefore Employers should have systems in place to measure all the hours their staff work, not just those hours that are set out in their contract of employment. The CJEU also said that employers cannot avoid having these systems in place because they are too expensive to implement!
However….. the UK Government had intervened in this case to argue against the CJEU outcome and the UK will need to amend the Working Time Regulations to comply with this decision (and could face infringement proceedings from the European Commission if they fail to do this). Because of the UK Government’s opposition to this decision and because of Brexit it looks unlikely the UK Government will amend the WTR any time soon! There would also need to be updated guidance from the Health & Safety Executive!
Update – on 23rd September 2022 the Government announced the Retained EU Law (Revocation and Reform) Bill, which would mean EU-derived employment law will expire on 31st December 2023, unless it is ‘preserved’ in some form (i.e. positive action is taken by the Government). However, the Government changed their plans (!) and on 10th May 2023 announced ‘the first in a series of upcoming regulatory reform announcements’. In Section 4 of the Policy Paper, they announced they would reduce Working Time Regulations reporting burdens (so businesses don’t have to record working hours for many staff) and reduce the complexity of calculating holiday pay and re-introduce rolled-up holiday pay.
These changes were confirmed in new legislation, effective from 1st January 2024, that is effective in Great Britain (England, Scotland, Wales), which you can read about in our full advice about the Working Time Regulations – holidays, rest breaks – here.