What are an employer's record-keeping obligations under the Working Time Regulations 1998?

Under reg.4(2) of the Working Time Regulations 1998 (SI 1998/1833), an employer is obliged to retain up-to-date records of workers who have agreed to opt out of the 48-hour working week. Employers should maintain a list of the names of such workers, and a copy of the opt-out agreements.

Regulation 9 requires employers to keep records that are adequate to show that:

  • working time, including overtime, for workers who have not opted out, does not exceed an average of 48 hours for any seven-day period (reg.4(1));
  • young workers' working time does not exceed eight hours per day, or 40 hours per week (reg.5A(1));
  • night workers' normal hours of work do not exceed an average of eight hours in any 24-hour period (reg.6(1)) or, where the work involves special hazards or heavy physical or mental strain, night workers do not work for more than eight hours in any 24-hour period (reg.6(7));
  • no young worker works between 10pm and 6am, or between 11pm and 7am if the contract requires them to work after 10pm (reg.6A);
  • night workers (including young workers) have the opportunity of a free health assessment before commencing night work, and throughout employment as a night worker (reg.7).

These records must be maintained for each applicable worker for two years from the date on which they were made. A failure to keep such records is an offence for which the penalty in England and Wales is an unlimited fine.

In FederaciĆ³n de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE [2019] IRLR 753 ECJ, the European Court of Justice (ECJ) held that employers are required to keep records of the daily hours actually worked by workers. The ECJ concluded that EU law means that national laws must require employers to set up a system enabling them to measure "the duration of time worked each day by each worker". Amendments to the Regulations would be required to meet the standard of record-keeping set out in this ruling. It is unclear if and when these legislative amendments will be made.