Working time and time away from work

Employees are entitled to be paid their normal rate of pay while they are on holiday. Case law has developed that other payments beyond that should also be included, such as commission and overtime rates. See Lock v British Gas [2016], Bear Scotland v Fulton [2017] and East of England Ambulance Trust v Flowers [2019].

The approach of 'rolled up holiday pay' (ie paying an additional amount in the employee's wage or salary to cover holidays, and then not paying the employee when they take holiday) is is currently unlawful, however the government announced in November 2023 plans to introduce this into legislation for those working irregular hours and part year workers.  See the In-depth page on Holiday entitlement and pay for more information. 

Young workers (those who are under 18 but over school leaving age) are not usually permitted to work more than eight hours a day or 40 hours a week. The hours worked cannot be averaged out over a longer reference period and there is no opt-out for young workers.

See our section on young people for further information about school leaving age.

The youngest age a child can work is 14 (13 if local bye-laws allow), aside from in areas involved in television, theatre or modelling. The below therefore outlines provisions for those aged 13 to 16.

During term time, children can only work for a maximum of 12 hours per week, which includes:

• 2 hours maximum on school days
• 5 hours maximum on Saturdays for 13 to 14-year-olds, and 8 hours maximum for 15 to 16-year-olds
• 2 hours maximum on Sundays.

During the school holidays, 13 to 14-year-olds can only work a maximum of 25 hours per week, which includes:

• 5 hours maximum on weekdays and Saturdays
• 2 hours maximum on Sundays.

During the school holidays, 15 to 16-year-olds can only work a maximum of 35 hours per week, which includes:

• 8 hours maximum on weekdays and Saturdays
• 2 hours maximum on Sundays.

Local authorities may also set further restrictions on the hours that children can work and the breaks they should be entitled to.

Any organisation looking to engage a child worker must contact their local authority first, as there may be registration requirements and local bye-laws that apply. 

An adult worker can, if they choose, opt out of the 48-hour maximum working week. Any agreement to opt out must be in writing and must either relate to a specific period of time or apply indefinitely.

Within the agreement there must be the right for the worker to give seven days' notice to terminate the agreement. This notice period can be extended by agreement between the parties, but cannot be more than three months. An employer cannot enforce a worker to opt back into the 48 hour working week.

If the pattern of an individual’s work puts their health and safety at risk (eg because the work is monotonous or the work rate is predetermined) employers must provide adequate work breaks.

This might apply to assembly line workers doing repetitive jobs, or call centre staff. The requirement for adequate work breaks for monotonous work cannot be modified or excluded by a collective or workforce agreement.

The regulations do not state that this must be in addition to the daily 20-minute rest break, although it is probably best to assume that this is the case.

Compensatory rest is a period of rest that is the same length as a rest period, or part of a rest period, that a worker has missed. Instead, they must be provided with an “equivalent period of compensatory rest”.

The right to compensatory rest only applies to workers in some “special case” sector jobs that are not entitled to an uninterrupted period of 20 minutes rest due to the nature of their job, such as a security guard, doctor or railway operator. It should not be used when the 20-minute rest break can be taken.

In 2019, the UK Court of Appeal outlined in Crawford v Network Rail Infrastructure Ltd that compensatory rest should be structured by aggregating shorter breaks in circumstances where a continuous break cannot be provided. However, the aggregated breaks must still provide “equivalent” value in relation to rest and safeguarding the worker’s wellbeing, thereby preventing employers from aggregating very short breaks, eg those lasting 1 or 2 minutes.

The Regulations do not specify a time limit in which compensatory rest must be taken by an adult worker, however the European Court of Justice has considered this issue in Landeshauptstadt Kiel v Norbert Jaeger. It concluded that where a doctor’s daily rest period had been reduced as a result of working on-call in addition to their normal working hours, that doctor was entitled to take an equivalent period of compensatory rest immediately after the corresponding periods worked.

Young workers have the right to take compensatory rest if they are not entitled to take daily rest or rest breaks. This should be same amount of rest they should have had and can be taken just after any rest they have missed. However, it must be taken within the following three weeks.

It is down to an employer and their employees to agree on payment during compensatory rest.

There is a range of leave that employees are entitled to in relation to family situations. See the following topics on Parental leave and time off for dependants for more detailed information.

The European Court of Justice has held in the case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another that the time spent by workers who do not have a fixed place of work on travelling each day between their homes and the premises of their first and last customer designated by their employer is “working time” for the purposes of the Working Time Directive.

As a result of this ruling, it is very likely that “working time”, as defined under the Regulations, will be interpreted by UK courts and tribunals on the basis that all travel time of peripatetic workers, including to and from their homes, will be regarded as working time.

As such, it is advisable for employers to put in place the necessary monitoring procedures to avoid any abuse (eg to prevent employees claiming travel that they have not completed).

Being on-call relates to situations were a worker is not technically working but is available to work if needed. The question as to when on-call time can count as working time has been considered by the courts in a number of cases.

Previously, the European Court of Justice (ECJ) has held that only time where a doctor was required to be at their workplace was working time for the purposes of the Working Time Directive, and excluded on-call time where a doctor is away from their workplace even though they could be contacted.

They later went on to say that the factor to consider when determining if on-call counts as working time should not be the proximity requirement but instead the quality of the time spent while on-call. For example, when looking at a case concerning a doctor on-call who was required to be at work within 8 minutes, the ECJ held that these restraints on the employee’s time meant his ability to do other activities was severely restricted and as such this fell within the definition of working time.

Therefore, it is advisable to consider the nature of the period in which an employee is to be on-call. If they are able to conduct other activities during this time, it is likely not to be considered working time. However, if they are limited in what they can do, or have to be in close proximity to their place of work, it may be harder for an employer to argue this is not working time.

Sleep-in shifts refer to situations where employees are on-call and remain in the workplace until they are available, being able to sleep through the shift until they are required.

Whether this should be considered working time has been a topic of much discussion within UK courts. Previously, tribunals and the European Court of Justice have held that this should constitute working time for the purposes of the Directive, as individuals are expected to be at work, and at their employer’s disposal.

This stance has changed recently in relation to national minimum wage (NMW), in a ruling from the UK Court of Appeal, later confirmed in the Supreme Court, Royal Mencap Society v Tomlinson Blake [2021], which held that workers who perform sleep-in shifts were only “available for work” when asleep and not actually working, meaning time spent asleep was not working time for the purposes of NMW. 

The position remains unchanged that sleep in shifts would still be working time under the WTR, as the individual is still limited in what they can do by their employer. 

Employers of reservists who are called up are obliged to release them and subsequently to re-employ them afterwards, provided the employee makes a written application for re-employment within six months. These special provisions apply only if there has been an official call-up. Employees who are reservists must normally make their own arrangements with their employers for time off for other purposes, such as training.

For more information on the employment of reservists, please refer to our 'how to' guide on managing reservist employees. 
 

With more staff working from home as a result of the coronavirus pandemic, concern was raised as to how much they were able to switch off from their duties outside of their working hours due to how easy it was to now contact them at home. As a result, the idea of the right to disconnect has garnered more popularity.

This is where employers, by policy and company rules, instructs staff not to respond to any work-related queries, or conduct any work, outside of their hours. It also prohibits them from being contacted, unless in specific situations. Under this ‘right’, staff can turn off communication devices and send automated emails when not working.

It should be noted that this is not a lawful requirement, however employers may consider implementing this policy in order to discourage staff continuously working out of hours.

There have been suggestions of employers having the ability to ‘opt-out’ of this right, should their circumstances allow it, however it is yet to be seen how this would be defined.

An employee with at least two years' continuous service, who is put under notice of redundancy, is allowed a reasonable amount of time off work to search for alternative employment. They should be paid to a maximum of 40% of a weeks pay (a week’s pay here is not capped).

An employer that operates an occupational pension fund is obliged to permit a reasonable amount of paid time off to employees who are trustees of that pension fund. Time off is allowed for performing duties as a trustee and for training in connection with those duties. Time off is paid.

Organisations can use workforce agreements to exclude or modify the following provisions of the working time regulations:

• the 17-week reference period for calculating average weekly working hours can be extended to a maximum of 52 weeks (where there is a technical or objective reason or one concerning work organisation which justifies the greater period)
• the entitlement of a rest period in each 24-hour period
• the entitlement of a rest period in each 7-day period, or 48 hours in a 14-day period
• the minimum rest break where daily working time is more than six hours
• the limits on night worker’s average hours
• the 17-week reference period for calculating average normal hours for a night worker
• the limits on night work involving heavy physical or mental strain or special hazards.

The workforce agreement can also contain specific definitions of ‘working time’, ‘night worker’ and ‘night time’ to be used when determining rights within the regulations.

A workforce agreement needs mutual agreement between the employer and elected workforce representatives, or workers themselves where 20 or fewer workers are employed. The agreement can either apply to the whole of the workforce or those workers who are within a particular group in the organisation, such as those who carry out a particular function or those who work in a particular department or unit within the business.

In order to be classed as workforce agreement under the Working Time Regulations, agreement must:

• be in writing
• be for a duration that is not more than five years
• be signed by the elected workforce representatives or, where 20 or fewer workers are employed, by the appropriate representatives of the workers or a majority of the workers.

In advance of the agreement being made available for signing, the employer must also provide all affected workers with a draft copy of the agreement and any guidance that they may reasonably require to fully understand the agreement.

A workforce agreement cannot be used where the workers have employment terms and conditions which have been negotiated through collective bargaining.

Our template workforce agreement can be found here.

An adult (or young) worker can pursue a claim before an employment tribunal on the grounds that their employer contravened their right to:

• a daily rest period

• a weekly rest period

• a rest break

• statutory paid holidays

• an equivalent period of compensatory rest

• whole or part payment in lieu of statutory paid holidays outstanding on termination of employment.

The worker must complain to the tribunal within three months (subject to certain rules, six months in the case of a member of the armed forces) of the date on which they became entitled to any of the rights outlined above. A tribunal may extend the three-month limit where it is satisfied that it was not reasonably practicable for the worker to present their complaint within the three-month time limit.

In the case of a daily or weekly rest period or a statutory paid holiday extending over a day, the date will be the day that the daily or weekly rest period or a statutory paid holiday should have begun. In the case of whole or part payment in lieu of statutory paid holidays not being made, the date will be the day on which the payment should have been made.

Where the worker’s complaint is successful, the tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the worker. In the case of whole or part payment in lieu of statutory paid holidays, the tribunal will order payment of the due amount by the employer.

However, there is no ability for an employee to bring a claim where the employer has required them to work over 48 hours without opting out. The possibility of bringing a claim for working over the statutory limit requires the employee being subject to unfair detriment or dismissal as a result.

The Taylor Report (produced at the direction of the Government in July 2017) recommended that HM Revenue & Customs should be given a role in enforcing the right to holiday pay. However, no such power has been granted yet and the Government is seeking further information regarding failure of employers to comply with this obligation.

What is bereavement leave?

Bereavement leave is time off work given to employees who are going through a grieving process after the death of someone close to them.

Bereavement can have different effects on different people within the workplace. It can have severe emotional, physical, spiritual or physiological effects on some employees, whereas others may be able to cope better.

Bereavement can have a wider effect on an employee’s job performance, absence record and ability to do certain parts of their role. Under their general duty of care, the employer should take into account the employee’s bereavement and make reasonable adjustments to support them through this time.

Should employers provide bereavement leave?

There is currently no statutory right to bereavement leave and any leave given for this reason is down to the employer to decide. But, there are many advantages to providing leave, including:

• A period of leave immediately after the death may reduce sporadic absences later down the line.
• Retaining valuable employees will save you the cost of recruitment and training a new member of staff.
• Supporting your employees will improve satisfaction and motivation, which in turn contributes towards increased productivity.  

​​​​​There are, however, separate specific rules and entitlements for employees who suffer the loss of a child aged 18 or under, or experience a stillbirth after 24 weeks of pregnancy. This is called parental bereavement leave (also known as jack’s law). More information can be found in our topic area here. 

How much time off do employees get?

The employment rights act 1996 gives all employees a right to reasonable time off to deal with an emergency involving  a dependant, from the first day of their employment. Time off for dependants can be used immediately following a death, however, it is not intended to cover the grieving process – it is there to provide short-term support for the employee to make practical arrangements (e.g. To plan and attend a funeral).

A “dependant” in this case is defined as a spouse, child, parent, a person who lives in the same household or any person who reasonably relies on the employee in a case of emergency.

“reasonable” time off is not defined by legislation, leaving it to the employer to decide how much time is appropriate based on the individual circumstances, any workplace policies, practices and customs. Some employees may have contractual entitlements to time off for dependants. If that is the case, you must adhere to their contractual rights to avoid risk of breach of contract claims.

Do employees get time off to attend a funeral?

Employees have the right to time off for a funeral if the person who died was a dependant. There is no legal right to time off if the person does not fall within the definition of a dependant, but employers should still be reasonable and respectful in these situations. The person who died may not have a biological or legal connection to the employee, but could still be closely connected to them.

Similarly, employees may request time off to accompany a friend or family member to a funeral. Where this does not fall within the scope of existing bereavement policies, employers should reasonably allow the person to take unpaid leave (including compassionate or “special” leave), or take the day off as annual leave.

How long should bereavement leave last for?

Bereavement leave is time off to deal with the emotional aspects of grief following a death and should be managed as a separate issue.  Employers can look at the contract of employment to ascertain an employee’s entitlement to bereavement leave.

In most cases, their entitlement will be flexible so it will be down to you to decide how much time off to give. The employee’s individual circumstances will dictate the amount of bereavement leave needed. This might involve consideration of the nature of the relationship with the deceased and the employee’s emotional stability.

Employers should realise that different employees may need different amounts of time off. However, employees should be treated with consistency as much as possible, and any decision made

Regarding the length of leave should not be based on a protected characteristic (e.g. Age, sex, sexual orientation etc), as this may lead to claims of discrimination.

What pay do employees get during bereavement leave?

There is no statutory entitlement to pay during periods of bereavement leave. As such, this will be unpaid unless there is a contractual provision for pay.

Where employers choose to offer pay for bereavement leave, they should ensure this applies fairly and equally to all employers.

It is beneficial to set out clearly the parameters of the pay entitlements and any eligibility requirements; for example, if the pay varies according to the employee’s length of service. Similarly, a policy should specify the maximum amount (e.g. 2 weeks) and how this can be requested.

What should be included in a bereavement policy?

It’s best to have a policy on bereavement leave so both the employer and employee understands their entitlements during these situations. The policy should outline:

• When leave for bereavement could apply
• How much leave the organisation provides
• If leave is paid, and the amount of pay

A policy may make reference to compassionate leave or special leave; in this context, it applies in the same way as bereavement leave.

If there is no policy, employers should discuss the above with their employee. Some may wish to treat the period off

Work as sickness absence or annual leave. The usual processes for evidencing (e.g. Fit note after 7 days of self-certification for absence) and requesting leave should be followed.

See our template bereavement policy here. 

What’s the best way to speak to a bereaved employee?

When an employee experiences a bereavement, talking to them can be difficult but it is important for employers to do so, especially when considering the wider duty of care obligations they have for their staff.

The conversation should be based on the individuals needs but the following structure can be used as a guideline:  

• Offer your condolences.
• Explain that the company will provide them with all the support resources available.
• Assure them that they don’t need to worry about work and that their workload will be covered by colleagues.
• Inform them that they can take the necessary time off work and direct them to the policy which deals with time off requests
• Let them know that regular contact will be maintained.  
• Ask them how they would prefer to be contacted and times which are convenient or inconvenient.
• It may be appropriate to ask how much information can be shared with colleagues, or whether they would rather keep the situation private.

Employers should remember that the data protection act (1998) applies to any information which the bereaved employee shares with you, so should not be discussed with others.  

Can an employee be contacted when they are on bereavement leave?

Asking directly when the employee wishes to return to work may not be appropriate during the initial stage of the bereavement leave. It’s best to keep in touch with the employee during their time off, without being intrusive or causing them undue distress through overly frequent contact.

Having regular reviews will enable you and the employee to discuss any actions which will help them return to work, such as reasonable adjustments or flexible working arrangements. Having a paper trail of the discussion removes any element of confusion, so employers should write to their employee to confirm what was discussed and decided, as well as any future review dates.   

What happens when the employee returns to work?

A bereaved employee may wish to make changes to their working hours; this can either be discussed during a welfare meeting or by the employee submitting a flexible working request.

Part-time work or flexible working may be requested by an employee after bereavement, especially in cases where the employee becomes a single parent. Employers can consider and discuss whether reducing or amending their hours or responsibilities will help them come back to work.

A phased return may also appeal to the bereaved employee as it offers gradual change at a pace they are comfortable with. These amendments can be in the form of a long-term change or a temporary adjustment, with regular reviews until the person feels able to return to their previous position.

An employee assistance program (EAP) can offer support and assistance to employees on a number of different issues; bereavement is often one of them. Referring the employee to an EAP or providing internal counselling by a trained professional is advisable.

Is there a link between bereavement and discrimination?

It is important to note that, in some cases, bereavement may have such a severe effect on the day-to-day life of an employee that they may be considered as disabled within the meaning of the Equality act (2010). This would happen when the effects of the loss are long-term (generally when it has lasted or is likely to last for at least one year year).

Employees with a disability (including both physical and mental conditions) have a right to have reasonable adjustments made to their role. 

Where the bereaved employee breaches an absence policy, employers should  consider excluding some or all of the bereavement related absences, especially if the employee is disabled within the definition on the equality act 2010.

Employees may find it difficult during significant days linked to the person who died, such as their birthday or anniversaries of the death. As such, an employee may request annual leave or  authorised absence during these days; employers should be mindful and respectful when dealing these requests.

The Equality act 2010 also provides protection from discrimination on the grounds of religion or religious belief.

Some religions may require the bereaved person to grieve for a set amount of time after the death. If they request that time off work and it is subsequently refused, they may be able to claim indirect religious discrimination.

What happens if a colleague dies?

The death of a colleague can have an impact on everyone in the organisation, especially in cases where the death occurred in the workplace or in its proximity.

When such a large portion of the workforce is affected, it is advisable to provide counselling and support for all. In such cases you shouldn’t keep the death silent and go without addressing it. The employer should:

• Tell others that the person has died, in a sensitive and personal way
• Offer support to staff affected by the death
• Contact the person’s family or next of kin to offer condolences
• Let staff know how they can give their condolences
• Share details of the funeral or ceremony, if staff have been invited

Before passing on an information, it’s best to ask the person’s family or next of kin what they’d like people to know about the death.

There are then some practical considerations which may need to be discussed, for example, in relation to the ending of the employment contract and payment of outstanding wages and accrued annual leave. However, such discussions should be broached delicately and only when the individual is ready.

Employees with ties to areas of world conflict, and possibly some without, may feel compelled to travel there and help, for example by providing humanitarian aid. Where this is the case, employers will need to carefully consider this request. Placing an outright ban on this is unlikely to go down well from an employee relations perspective. It is also likely to be unreasonable and unenforceable.

Employers faced with these requests might consider treating this the same as they would a sabbatical. Reference to a sabbatical policy (such as our template here) would be useful, and the arrangements for their time away and return to work. Of course, it cannot be known how long the situation will go on for , so a definite end date may not be possible, but discussing with the employee an initial period, and means to stay in touch, will at least add some clarity to the situation. Alternatively, a short-term solution is to agree annual leave, or a short period of unpaid leave. It is essential that any agreement includes a means of contact with the individual, such as a forwarding address, email, telephone, or someone that any documentation can be sent to, care of the employee. 

Employers facing this situation should be reminded that normal dismissal rules apply in this situation, and that any dismissal would have to be done fairly. A key component to that would appear to be the length of the absence and how an employer may or may not be able to manage that absence.

Some nationals of the countries involved in a conflict may be required to return to the country to join their military efforts. Whilst UK laws on reservists do not apply to them, treating them in the same way as a UK reservist is likely to be the most reasonable course of action, and allowing them to go and return to their same job will be the fairest approach.

With the improvements in medical science, more individuals than ever are able to have their own biological children. As such, employers may be faced with requests for time off to undergo fertility (or IVF) treatment or to support their partner. There is not however any right in law to take time off for this, it is at the employers discretion. 

Once option for employees undergoing IVF treatment is to take annual leave. However, an employer may wish to provide additional paid or unpaid leave where an employee has a defined minimum period of service (although employers should take care that this does not amount to unlawful age discrimination). It should also be noted that an employee who is undergoing or recovering from IVF treatment will be entitled to sick pay if they present a medical certificate stating that they are not fit to work.

If employers offer paid/unpaid leave they should bear in mind that:

• a medical examination to discover the cause of an employee’s infertility can last from months to years, and it is also very difficult to forecast the length of time that an employee may undergo IVF treatment

• the amount of time off from work that an employee takes while undergoing a cycle of IVF treatment will vary on an individual basis, eg an employee may be unfit to work after undergoing such treatment because they are suffering from its side-effects.

Employers may also want to explore flexible working options to see if the employee can undergo treatment outside of core hours and make up the time another day.

It is important to ensure that a procedure is in place, setting out notice requirements and providing for the right to see appointment cards and/or a statement from a qualified medical practitioner that fertility treatment has been approved. Our template policy can be found here. 

Where an employer refuses a request for time off to undergo fertility treatment then this may lead to a claim for sex discrimination contrary to the Equality Act 2010 (formerly the Sex Discrimination Act 1975). This may occur where a similar request by a male employee would not have been turned down (direct sex discrimination) or where the reason for refusing the request has a disproportionate impact on women and cannot be objectively justified (indirect sex discrimination). In these situations the female employee would bring a claim under the Equality Act and would have to point to a male comparator (section 13 for direct discrimination and section 19 for indirect discrimination).

Employers should note that the European Court of Justice (ECJ) decided in the case of Mayr v Backerei und Konditorei Gerhard Flocckner OHG  that a woman undergoing in vitro fertilization (IVF) will be treated as pregnant from the date the fertilized eggs are implanted into the woman’s uterus. This has implications since once a woman is pregnant she will be afforded special protection under section 18 of the Equality Act 2010. This makes it unlawful for an employer to subject an employee to any detrimental or discriminatory treatment for a reason that relates to pregnancy or maternity leave and women who bring claims under this provision do not have to point to a male comparator. Where a fertilised egg is created but not yet implanted, the woman concerned is not entitled to the protection of the Health and Safety of Pregnant Workers Directive (92/85/EEC). If she could be considered pregnant, the court argued, the protection could be granted even when transfer of the fertilised eggs was postponed, possibly for years. The ECJ went on to confirm, however, that the Equal Treatment Directive (76/207/EEC) would protect a woman from dismissal if the reason for that dismissal was that she had undergone IVF treatment.

In the Mayr case the ECJ also decided that women who are in the late stages of IVF treatment but are not pregnant and complain of detrimental or discriminatory treatment can bring a claim under section 1 of the Sex Discrimination Act for direct discrimination (now s.13 Equality Act 2010). However this case suggests that there will be no requirement to point to a male comparator because at the relevant time they will be undergoing procedures that are unique to women and should therefore be afforded special protection.

The Mayr decision has been supported by the EAT in Sahota v Home Office & Pipkin . It refers to a limited and closely defined period of protection for women undergoing IVF treatment.

The EHRC Code recommends that employers treat requests for time off for IVF treatment “sympathetically”. It states that employers may wish to set up procedures for allowing time off for IVF and fertility treatment. These could identify specific members of staff whom women can notify on a confidential basis that they are having treatment. The Code also suggests that less favourable treatment of a woman because she is undergoing IVF is likely to be sex discrimination even though it would not amount to pregnancy discrimination until the point at which the embryos were implanted.

It is worth remembering that infertility is a medical condition and IVF treatment is expensive and stressful for the person concerned, so any time-off requests should be handled with sensitivity. It is also essential that the employee’s line manager or HR department do not disclose to any person that the employee is undergoing IVF treatment. This is sensitive personal information and should be lawfully processed in accordance with the principles of the Data Protection Act 2018.

In the case of London Borough of Greenwich v Robinson, the Employment Appeal Tribunal found that the use of a redundancy selection criterion that took account of an employee’s time off from work for IVF treatment absences did not amount to unlawful direct sex discrimination because the treatment was given to both men and women. However, the use of such a criterion may amount to unlawful indirect sex discrimination if it can be shown that women require more treatment for IVF than men undergoing fertility treatment, and therefore it is more likely that a woman would be selected for redundancy where the criterion has been applied.

IVF bill 

A Bill to require employers to allow employees to take time off from work for appointments for fertility treatment; and for connected purposes, is in the early stages of becoming a law. Whilst it has a long way to go before then, it is still a positive sign that this is at least being considered to become a statutory right. 

Regulation 9 of the Working Time Regulations 1998 requires employers to, among other things, keep adequate records to demonstrate compliance with:

• The maximum weekly working time
• Length of night work
• Health assessments and transfers of night workers to day work

This does not require specific records to be kept of daily/weekly rest or of the hours worked each day for every worker.

However, the 2019 judgment of the Court of Justice of the European Union (Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE) presents a risk that employers would need to comply with increased record keeping requirements by recording all daily working hours of all workers. In 2023, the government undertook a period of consultation where it proposed to remove this requirement.

In November 2023, the government announced that it will remove the effects of the CCOO judgment, which it said leaves the position as to record keeping uncertain and means employers face the potential of the high cost of introducing a system to record working hours. Once implemented, employers will still need to keep adequate records to demonstrate compliance with the Working Time Regulations, as is currently prescribed in legislation.

Guidance covering the Working Time Regulations will be re-published, including clarity on the requirement to keep records, alongside the commencement of changes to Regulation 9 of the Working Time Regulations.

Any changes to the law will take time and the exact timeline is not yet known.