Changes expected to the Working Time Regulations and record-keeping requirements

27 August 2025

The Working Time Regulations 1998 (WTR), which are intended to protect health and safety at work, dictate minimum entitlements for rest and holiday and set limits on working hours during the day and at night, with stricter limits for young workers. Employers are required to keep records to show their compliance with specific provisions.

Post-Brexit changes in 2024 were intended to relax record-keeping requirements on employers, but the obligations remain significant and will be expanded under the Employment Rights Bill (as currently drafted). Employers will face new record-keeping requirements in relation to holidays, and the Bill also creates a new enforcement agency, with enhanced enforcement powers.

To ensure records are accurate, employers first need to be confident that they are correctly categorising working time; this is not always straightforward and can include time spent travelling or on call. Although the changes under the Employment Rights Bill are not expected to come into force until 2026, employers are likely to have a number of significant changes to grapple with; now is a good time to start getting ready.

In this article, we outline the current record-keeping requirements and the expected changes to the WTR.

What do we need to keep records of?

Employers currently need to keep records to show compliance with the following provisions of the regulations, where relevant, in respect of each member of staff:

  • the average weekly working time limit of 48 hours;

  • any workers who have opted out of the above limit;

  • the actual weekly working time limit of 40 hours for workers aged under 18 (averaging over a rolling period is not permitted);

  • the actual daily working time limit of 8 hours for workers aged under 18 (averaging over a rolling period is not permitted);

  • the average daily working time limit of 8 hours for night workers;

  • the actual daily working time limit of 8 hours for night workers where the work involves special hazards or heavy physical or mental strain (averaging over a rolling period is not permitted);

  • the prohibition on night working during the ‘restricted period’ for workers aged under 18, subject to limited exceptions and conditions; and

  • the requirement to offer free health assessments to night workers.

There is currently no requirement to keep records to show daily and weekly rest breaks or holiday taken.

How do we meet the record-keeping requirement?

Since January 2024, employers have only been required to keep such records as they ‘reasonably think fit’ to demonstrate compliance with the requirements above. Therefore, provided they can demonstrate compliance, there is no obligation to keep records of the actual hours worked. For instance, it may be possible to extract the relevant information from other records, such as pay records. We can advise you on the simplest way for your business to meet its record-keeping requirements. Records must be kept for two years.

What are the risks if we do not keep records?

Failing to keep the required records is a criminal offence punishable by an unlimited fine. The crime may be prosecuted by the Health and Safety Executive or by local authorities. While individual workers cannot bring a civil claim for failure to keep the required records, inadequate records may leave a business vulnerable in the event of a civil dispute with a worker, e.g. regarding working time or holidays.

What changes should we expect and when?

The Employment Rights Bill will introduce a significant new requirement for employers to keep records of holiday and holiday pay.

The Bill will also create a new enforcement body, called the Fair Work Agency. This will take on various roles of existing enforcement agencies, as well as having new responsibilities and enhanced powers. Most significantly in this context, it will have a new remit to enforce paid holiday entitlement on behalf of workers and to issue penalty fines relating to underpayments in the prior six years (with a backstop of the date the Bill comes into force). Its new enforcement powers include requiring any individual to provide information or documents, entering premises, and accessing IT systems.

Employers will need to keep adequate records to demonstrate compliance with:

  • the statutory holiday and holiday pay legislation, including for irregular hours and part-year workers;

  • the requirement to make a payment in respect of accrued untaken holiday on termination, including any holiday carried forward from the previous holiday year (for example, due to maternity leave or extended sickness absence); and

  • the requirement to make a payment to an irregular or part-year worker in lieu of accrued untaken holiday on termination.

Records must be kept for six years. Employers may be liable to an unlimited fine if they do not comply.

Although most employers keep records of annual leave, these changes are significant because it is not always easy to get calculations of holiday entitlement and holiday pay right. For example:

  • freelancers who are treated as independent contractors may have deemed worker status and be entitled to a backlog of holiday pay; or

  • the correct calculation of a worker’s holiday pay may require a calculation of certain additional payments, such as commission and overtime, that they would have earned if they had been in work.

How we can help

Media coverage often increases workers’ awareness of their rights and may prompt claims, so it is advisable to anticipate the above changes. We can help you ensure your business is compliant.

For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Chris Tutton