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My employer does not keep records of my working hours. Is this permitted?

Employers will always need to keep records for workers who are paid by the hour for payroll purposes. They are less likely to monitor unpaid overtime carried out by salaried staff, and the law on working time is slack in this area.

The Working Time Regulations were amended in 1999 and changed the requirements on employers to keep records.

The position now is that:

  • Employers need to keep records that show that the weekly working time limit is complied with. It is for the employer to determine what records need to be kept for this purpose. They may be able to use existing records maintained for other purposes, such as pay, or make new arrangements.
  • Employers do not have to keep a running total of how much time individuals work on average each week. How they monitor workers' hours depends on particular contracts and work patterns.
  • Employers need only make occasional checks on workers who do standard hours and who are unlikely to reach the average 48-hour limit. However, they should monitor the hours of workers who appear to be close to the working time limit – and make sure they do not work too many hours.
  • Employers need to keep an up-to-date record of the names of workers who have agreed to work more than 48 hours a week.
  • Employers must offer regular health assessments to night workers. They should keep a record of:
    • the name of the night worker;
    • when he or she had the assessment; and
    • the result of the assessment.
  • Records must be kept for 2 years.
  • Employers do not need records for rest breaks, days off and annual leave.

The 1999 amendment had the practical effect of exempting unpaid overtime from the Working Time Regulations, but in 2006 the position was improved by a successful case taken by the European Commission to the Court of Justice of the European Union. As a result, 'partly unmeasured working time' counts towards the limits in the Working Time Regulations.

Partly unmeasured working time would include the unpaid overtime worked by middle managers and other white-collar workers as long as they are required to work extra hours as part of their job. Senior managers and executives who genuinely have control over their own working time are still exempt from the limits.