UK: Working Time: What Records Must Employers Keep?

Recently the Court of Justice of the European Union (CJEU) has ruled that, in order to comply with the EU Working Time Directive's (WTD) provisions, employers are obliged to set up a system for measuring actual daily working time for individual workers.

CJEU ruling on working time record-keeping

In a case brought by a Spanish trade union, Federación de Servicios de Comisiones Obreras (CCOO) the CJEU has held that under the WTD, Member States are required to impose record-keeping requirements on staff to ensure the maximum 48 hour weekly working time limit is not exceeded if an opt-out is not in place and also to ensure minimum daily and weekly rest breaks are observed.

The CJEU noted the importance of the fundamental right of workers to daily and weekly rest periods and limits on maximum hours meaning employers are obliged to ensure that workers, who are the weaker party in the employment relationship, actually benefit from these rights.

In the Court's view, without a system that reliably records the working hours of the individuals within the business, it is very difficult, if not impossible, for workers to ensure their rights are complied with. To ensure the effectiveness of the rights provided, the CJEU has ruled that 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 to be measured".

The CCOO ruling concerns a challenge to Spanish law implementing the WTD, but has wide repercussions making working time record-keeping requirements more onerous across all EU Member States, including the UK.

How does this impact employers in the UK?

What are the existing UK working time record-keeping provisions?

Regulation 9 of the Working Time Regulations 1998 (WTR) requires employers to keep "adequate records" to show whether certain, but not all of the limits and requirements specified in the WTR, are complied with (e.g. in respect of the maximum weekly working time, maximum daily and weekly working time for young workers and maximum length of night work). These records should be retained for two years from the date on which they were made

Regulation 9 does not specifically require records to be kept of daily or weekly rest or of the hours worked each day for every worker. As such, the WTR do not go far enough to meet the more onerous record-keeping requirements now held to be required by the CJEU.

What if the entire workforce have signed 48-hour week opt-out agreements?

Having a workforce that have all signed an opt-out agreement does not mean an employer is not impacted by this judgment.

The CJEU states that "the objective and reliable determination of the number of hours worked each day and each week is essential in order to establish, first, whether the maximum weekly working time ...was complied with ...and, second, whether the minimum daily and weekly rest periods... were complied with".

The limit on average working hours does not apply in the UK if the employer has obtained the workers' agreement in writing to perform work in excess of the limit (regulation 4(1) WTR), in other words a valid opt-out is in place from the average weekly working hours.

However, it should be remembered that workers cannot be forced to sign an opt-out agreement and any opted-out worker can cancel the opt-out at any time by giving at least seven days' notice unless the opt-out agreement provides for longer notice, which cannot exceed three months.

If a worker has signed a valid opt-out, then the need identified by the CJEU to determine the maximum weekly working time does not come into play. However, a worker can only opt-out of the limit on maximum weekly working time - the opt-out does not extend to rest-breaks which are also covered by the CJEU decision.

Under the WTR, workers in the UK are entitled to:

  1. a rest break away from the work station of not less than 20 minutes where daily working time is more than six hours;
  2. a daily rest period of at least 11 consecutive hours in each 24 hour period; and
  3. a weekly rest period of not less than 24 hours in every seven day period. Alternatively, an employer may average the rest period over a 14 day period by two uninterrupted rest periods of 24 hours or one uninterrupted 48 hour period.

Workers can elect to work additional hours by foregoing their rest entitlements under the WTR, (subject to certain restrictions, notably rules on night working, and additional foreseeable risk to health and safety). This is not to suggest that workers can 'opt out' of their right to rest periods in the sense of a legally-binding waiver. They have a right to rest breaks, but they also have the freedom to choose not to exercise that right at any given time.

The entitlement to rest periods may be excluded or modified in collective or workforce agreements but in each case the worker must be able to take an equivalent period of compensatory rest within a reasonable time.

There are some exceptions to the right to rest breaks for those in 'excluded sectors' under Regulation 18 (e.g. security guards) and autonomous decision-makers under Regulation 20. Also, 'special case' workers are not given the rest periods set out above, but must, wherever possible, be given an equivalent period of compensatory rest.

Accordingly, even for 'opted-out' workers there is still a need to record working hours to determine whether the minimum daily and weekly rest periods are complied with.

What is the impact of this judgment for employers in the UK?

In the UK, proceedings relating an employer's failure to keep records cannot be brought by individual workers but are instead brought by the Health and Safety Executive (HSE) or one of the other relevant enforcement agencies designated under the WTR 1998. A successful claim can result in the employer being guilty of a criminal offence and liable to pay a fine.

Member States' authorities (including the HSE) are obliged to interpret national law in a manner that is consistent with CJEU case law. However, it seems unlikely that the HSE or other relevant agencies would pursue a claim against an employer for failing to record the hours worked each day by each worker without first giving advance notice that they intended to take the approach required by this case. Namely that that this interpretation of the WTD should:

  • be applied directly as against public bodies, and/or
  • inform a court or tribunal's interpretation of regulation 9 of the WTR 1998 as applied to all employers.

Amendments to the WTR are clearly required to meet the standard of record-keeping set out in the CCOO ruling. Shortly after the judgment was handed down, new Spanish legislation (Royal Decree-Law 8/2019) came into force, making time recording mandatory on a daily basis so as to increase legal certainty and facilitate supervision by employees' representatives and the Labour and Social Security Inspectorate. Spanish sanctions for non-compliance with the working time record include fines up to EUR 6,250.

While the UK Government has consistently said that CJEU decisions made before Brexit will continue to bind courts after the UK leaves the EU, it is uncertain if and when legislative amendments similar to those introduced in Spain will be made in the UK. If the UK Government fails to amend the WTR, the EU Commission may bring infringement proceedings against the UK, although it is unclear what impact Brexit may have on the timeline and process of any legal action.

Another possible consequence of this judgment is that claimants in claims relating to rights under the WTR may argue that, in the absence of the employer having records of hours worked each day, the standard of evidence expected from the claimant should not be too exacting. In other words, tribunals should not require detailed records of missed breaks from claimants. Such an approach would take into account the difficulties faced by workers in the absence of a reliable and objective recording system by employers.

What should employers be doing now?

In order to be compliant with the WTD, employers should implement a system to objectively record all their workers' daily working hours. Employers should consider how they can collect the data needed to allow more detailed records of working time to be kept in a practical and cost effective manner. This does not mean a return to old-fashioned punch time cards. Modern working practices with the rise of agile working have led to less clearly defined and often trust-based working hours for many workers. The same digital technology which allows for more flexible working arrangements may also assist with modern time recording.

The future?

This summer sees a new EU Parliament and EU Commission: will the stalled revision of the WTD find a new impetus? Modern technology and a growing use of flexible working arrangements offer significant advantages to work-life balance for many workers. At the same time, there are growing warnings of the possible health impacts due to the increasingly blurred lines between home and work. A balance will need to be struck between not only employer business flexibility needs and workers personal flexibility needs, but also with working time compliance requirements aimed at protecting the health and safety of all workers. Whether the existing provisions of WTD 2003 are fit for modern work places is one for future debate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

Similar Articles
Relevancy Powered by MondaqAI
Goodman Derrick LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Goodman Derrick LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions