Are you compliant with work break laws? image

Are you compliant with work break laws?

Staff Squared date icon15th October 2018

Tag iconOperations

Work break laws are overseen by the Working Time Directive and your employee’s contract of employment.  At first glance, they seem relatively simple for your average adult worker, but become increasingly complex as you take a closer look at exceptions and considerations.

As part of our spotlight on Working Time Directive we’ve reviewed the 48 hour maximum and opting-out of the limit.  In this blog we turn our attention to your work break laws and your responsibilities so you can be sure you’re doing what’s legally right.

First, let’s quickly review what counts as work

“Working time” is defined by the Working Time Directive as any period when the worker is working, at the employer’s disposal and carrying out his or her duties.

What counts as work

  • normal duties
  • job-related training
  • job-related travelling time (e.g. as a sales rep)
  • working lunches (e.g. business lunches)
  • time spent working abroad
  • paid and some unpaid overtime
  • time spent on-call at the workplace
  • travel time for mobile employees with no fixed place of work (also called Peripatetic workers)

What doesn’t count as work

  • breaks when no work is done (e.g. lunch breaks)
  • commuting to and from work
  • time when they are on-call away from the workplace
  • unpaid overtime that they have volunteered for (e.g. staying late to finish something off)
  • paid or unpaid holiday

Know your types of breaks

You have a responsibility to make sure that what counts as work does not exceed 48 hours  and that your employees are receiving the correct amount of rest, daily and weekly breaks during their defined working time.

Rest breaks

In general, workers over the age of 18 have the right to 20 minutes rest when working more than 6 hours per day.  A lunch, tea or smoke break can count as a rest break.

The 20 minute rest can’t be split into two 10 minute breaks.  The right to rest after 6 hours is an entitlement to only one block of time unless your employment contract says so.

There’s no statutory right to ‘smoking breaks’.  Employers are not required to give smoking breaks on top of the usual breaks.  Smokers aren’t entitled to more favorable treatment under work break laws.  While it could be an unfavorable stance to not grant them extra time, it might be necessary to avoid hostility amongst employees.

There’s no legislation pertaining to a worker’s right to take religious breaks.  Like smokers, employees have no legal rights to additional religions breaks.  Still, religion is one of the provisions set out in the Equality Act 2010.  Meaning if an employer does refuse a request for religious breaks, they must ensure that they’re not treating them less favourably than employees of another religion.

There is no opt-out permitted.   Whether on an individual basis or by virtue of a collective or workforce agreement.

You can decide when it’s taken… The fact that you’re legally entitled to schedule the break is a hotly contested topic.  There have been cases where the Employment Tribunal ruled against an employer who organised an employee’s work hours so that they break was scheduled at the end of their shift.  You should make arrangements to schedule it somewhere in the middle to avoid

but not where it’s spent. They are entitled to spend the time from their workstation and away from the the premises.

For some special cases of worker, entitlement to breaks does not apply. This class of worker must be allowed:

  • where possible, to take an equivalent period of compensatory rest; or
  • where not possible, offered protection to safeguard their health and safety.
  • This is known as compensatory rest.

Daily breaks

Adult workers have the right to a break of at least 11 hours in each 24 hour period during which they work.  For example, if they finish work at 7pm, they can’t start work again until 6am the following day.

Weekly breaks

Adult workers have the right to 24 hours clear of work each week or 48 hours clear each fortnight.  Put another way, you’re required to grant one weekly rest period at some point during each seven-day period.

Therefore, your employee could work up to 12 consecutive days if the weekly rest periods were granted on the first day of the first seven-day period and the last day of the following seven-day period.

Exclusions and special circumstances to work break laws

As is the case with every Working Time Directive provision, there are a number of exclusions.

  • Workers in an industry with busy peak periods, like agriculture, retail or tourism
  • Workers in industries with 24 hour staffing requirement. For example, those who work in the Armed Forces, security or surveillance-based work, health care services, emergency services or law enforcement.
  • Workers who work with sea, road, or air transport are excluded from the rest break rules. However, there are usually other regulations that apply to these sectors.
  • a job where they freely choose what hours they work (like a managing director) or where the work is not measured (ie no set hours)

Instead of getting normal breaks, these workers are entitled to ‘compensatory rest’. This is rest taken later the same day or the following working day.

Young or adolescent workers

Workers under the age of 18, but over school leaving age (he/she is under school leaving age until the end of summer term of the school year in which you they 16) are classified as a ‘young worker’.

Over 18

Young workers
Rest 

20 minutes for 6 hours

30 minutes for 4.5 hours

Daily  11 hours 12 hours

Weekly 

24 hours

48 hours

Payment

 You’re not obligated to pay for breaks.  Whether or not it is paid will depend on the terms of the employment contract.

Record keeping

There is no requirement under the Working Time Directive for employers to keep records of rest breaks or rest periods.

Nevertheless, a well-rested workforce is happy, engaged and better performing

Technology has given us more flexibility in work than ever.  Workers are increasingly working remotely and aren’t constrained by working hours.  We’re also in an era where retention and staff engagement is critical.  To attract talent and keep staff working effectively and healthy, employers will often promote work-life balance.  Workers however, are then left to their own to set breaks.

Very few will take the full break, or choose to skip it altogether.  This leads to a whole host of mental and physical consequences.  Meanwhile, the benefits of time out are endless – lower stress levels, boost concentration and productivity, reduce sickness absence and healthy weight levels.

So aim to create a culture where taking breaks is the norm.  Encourage them to go outside, stock the kitchen and lead by example.  Your team will be energized and engaged even when work is challenging.  Meanwhile, your business will reap the rewards.

If not for these motivations, do it because of your legal obligations and not doing so can have consequences!

Contact ACAS for more details and exceptions on the Working Time Directive and rest breaks.

Written by Clarisse Levitan

Customer Care Team - Staff Squared

Clarisse works on our Customer Care Team to provide all of our customers to the very best care and guidance when using their HR software.

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