New duties in the United Kingdom, uneven implementation across the European Union, and a United States evidential rule dating to 1946 converge on a single question: what can an employer demonstrate about hours worked?
For much of the past three decades, the record of who worked, when, and for how long served payroll and was then retained without further examination. It was reviewed when a dispute arose. Otherwise it was treated as administration.
That position is changing across several jurisdictions at once, and for more than one reason.
In the United Kingdom, the Employment Rights Act 2025 received Royal Assent on 18 December 2025 and is being implemented in phases across 2026 and 2027. Since 6 April 2026, employers have been under a duty to keep adequate records demonstrating compliance with annual leave entitlement, holiday pay, and payment in lieu of outstanding holiday on termination. Those records must be retained for six years, three times the retention period applying under the Working Time Regulations. Failure to comply is an offence punishable by a fine. The Fair Work Agency was established on 7 April 2026, although its enforcement powers in respect of annual leave and annual leave records are not yet in force and are expected to follow in phases.
The commencement date for that duty had not appeared in the Government’s published implementation timelines before the regulations were made, which indicates how far the wider timetable remains subject to change.
The zero-hours provisions are expected to follow in 2027. Qualifying workers will gain rights to reasonable notice of shifts, to payment where a shift is cancelled, moved or curtailed, and to be offered guaranteed hours reflecting the hours they regularly work. The Government’s consultation on the detail, including the reference period used to calculate guaranteed hours, closes on 25 August 2026, with twelve weeks stated as its preference.
The guaranteed hours provision depends most directly on record quality. Any offer is calculated from a record of hours actually worked, and a record that is incomplete, disputed or reconstructed after the event will produce an offer of corresponding reliability.
The direction of change has not been uniform. With effect from 1 January 2024, the United Kingdom amended the Working Time Regulations 1998 so that employers need not record every worker’s daily hours where compliance can be demonstrated by other means. That relaxation is now being overtaken in practice: the Employment Rights Act increases the operational need for granular hours data even where the letter of the Working Time Regulations has been eased.
In the European Union, the transposition deadline for the Pay Transparency Directive (EU) 2023/970 fell on 7 June 2026. Four member states had transposed it in full at that date: Slovakia, Italy, Lithuania and Malta. The remaining twenty-three ranged from partial implementation to, in Sweden’s case, a formal suspension pending renegotiation. The Directive is nonetheless in force. Gender pay gap reports are due from 7 June 2027, annually for employers with 250 or more staff and every three years for those with between 150 and 249. Where a job category discloses an unjustified gap of 5 per cent or more that is not resolved within six months, the employer must undertake a joint pay assessment with worker representatives. Those calculations rely on hours data being accurate and comparable across the workforce.
The underlying position was established by the Court of Justice of the European Union in its 2019 judgment in CCOO v Deutsche Bank (C-55/18), which held that member states must require employers to operate an objective, reliable and accessible system for measuring daily working time. That judgment continues to inform national law across the bloc.
In the United States, the obligation is longer established and more direct. Section 11(c) of the Fair Labor Standards Act requires employers to make, keep and preserve records of hours worked. Where those records are inadequate, Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), reduces the employee’s evidential burden to a just and reasonable inference and transfers the burden to the employer to displace it. Tyson Foods v. Bouaphakeo, 577 U.S. 442 (2016), extended that reasoning to class actions, permitting representative evidence where an employer’s own records cannot rebut it. The practical consequence is that inadequate records operate against the employer rather than in its favour.
None of this legislation prescribes a particular system. Employers keeping annual leave records under the Employment Rights Act have discretion to create and maintain them in such manner and format as they reasonably see fit. What is prescribed is that the records be adequate, and adequacy is assessed after the event by a party who was not present when the work was performed.
Three characteristics tend to determine whether a record meets that standard. It should be accurate, reflecting what occurred rather than what was entered from memory at a later date. It should be contemporaneous, captured at or near the time the work took place. It should be traceable, so that a record can be followed to its origin and any subsequent amendment is visible rather than silent.
Traceability is the characteristic most often absent. Most organisations are able to produce figures. Producing an audit trail identifying who amended a record, when, and on what authority is a materially different exercise, and it is what distinguishes a data set from evidence.
In Tyson, a jury verdict of US$2.9 million was doubled to US$5.8 million on the application of liquidated damages under the Fair Labor Standards Act. In the United Kingdom, failure to keep the records required under the Working Time Regulations is a criminal offence carrying an unlimited fine, prosecutable by the Health and Safety Executive or by local authorities.
Litigation represents the most visible consequence. The more frequent cost is remediation: the time required to reconstruct or substantiate records once a query has been raised, which is slower and less persuasive than capturing them correctly at the outset.
Exposure is not confined by organisation size or sector. Shift working, overtime, multiple sites and mobile workforces each increase it, and many employers carry that exposure without having assessed it.
Each of the obligations described above depends on the integrity of the original record.
Reporting and governance applied to unreliable capture do not remedy it. An inaccurate record passes through the system unaltered, is analysed and relied upon with a confidence it has not earned, and fails at the point at which an authority requires the organisation to substantiate its position.
For that reason, regulatory attention is moving towards the point at which the record is created rather than the point at which it is reported.
Newmark Security plc operates in workforce management through Grosvenor Technology in the United Kingdom and GT Clocks in the United States. The developments described above form part of the regulatory environment in which employers in those markets operate.
The reclassification of workforce data from administrative output to evidential material is not a short-term theme. The implementation timetables referred to extend to 2027 and beyond, and, as the April 2026 commencement demonstrated, individual measures can take effect earlier than announced.
Scrutiny of workforce records is increasing in the United Kingdom, the European Union and the United States concurrently, driven by legislation with published commencement dates. Organisations that treat attendance data as a matter to be addressed on request are likely to find that it is addressed under time pressure, before an external party, and with the burden of proof against them.
The alternative is to capture such data accurately at source and to retain it for the periods over which it may now be examined.