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 him or her 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.