Presence Is Not Working Time
Presence time (or attendance time) is the total span between an employee's first clock-in and final clock-out. Under Regulation 2(1) of the Working Time Regulations 1998 (WTR 1998), actual working time is defined as any period during which a worker is working, at their employer's disposal, and carrying out their activities or duties. Consequently, actual working time is derived from attendance only after deducting statutory rest breaks (such as the 20-minute rest break required under Regulation 12 for shifts exceeding 6 hours) and any agreed contractual breaks.
Time tracking systems generally establish break durations in one of two ways:
- Logged timestamps: Recording exact clock-in and clock-out moments for each break taken.
- Automatic flat-rate deductions: Deducting a predetermined duration based on shift length.
Both methods are legally permissible in the UK, provided the employee actually receives their statutory uninterrupted rest breaks and the deductions do not cause pay to fall below the National Minimum Wage Act 1998 requirements. The chosen method should be set out clearly in the employment contract, staff handbook, or standard operating procedures.
Rounding Rules
Automated rounding rules — such as rounding clock-in or clock-out times to the nearest five, ten, or fifteen minutes — are common practice. Under UK employment law, rounding is permissible only if it operates fairly and neutrally, meaning it does not systematically disadvantage workers.
A rounding mechanism that consistently rounds start times upwards (e.g. clocking in at 08:02 rounded to 08:15) and finish times downwards (e.g. clocking out at 17:13 rounded to 17:00) artificially reduces recorded actual working hours. This practice exposes employers to substantial legal risks, including:
- Unlawful deduction from wages: Claims under Section 13 of the Employment Rights Act 1996 (ERA 1996).
- National Minimum Wage (NMW) underpayment: Breaches investigated and penalised by HMRC if uncounted time reduces the effective hourly rate below the statutory National Living Wage or National Minimum Wage thresholds.
- Breach of the 48-hour maximum weekly limit: Distorting records required under Regulation 9 WTR 1998.
Adjustments and Audit Trails
Manual modifications to logged working times are inevitable in operational environments — whether due to forgotten clock-ins, off-site travel, client meetings, or technical glitches.
From a compliance and evidentiary perspective, adjustments must maintain absolute integrity. Every correction must include an immutable digital audit trail recording:
- The precise date and timestamp of the modification.
- The identity of the manager or user who made the adjustment.
- The reason for the change.
- The original, unedited raw timestamp.
Maintaining this transparent audit trail ensures compliance with employer record-keeping obligations under Regulation 9 WTR 1998, the European Court of Justice ruling C-55/18 (CCOO — requiring an objective, reliable, and accessible system), and HMRC requirements for National Minimum Wage proof (which must be retained for at least 6 years). Furthermore, all processing of employee time records must adhere to UK GDPR and the Data Protection Act 2018 in line with Information Commissioner's Office (ICO) employment practices guidance.
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