Thursday, September 8, 2011

Rest Breaks and the Law

Rest breaks

Most workers have the right to take breaks, but whether or not you are paid for them depends on the terms of your employment contract. There are special rules about rest breaks for some types of worker - especially those working in the transport industry.                               

Types of breaks

You will normally have a variety of different breaks from work. These can be broken down into three types:

  • 'rest breaks' - lunch breaks, tea breaks and other short breaks during the day
  • 'daily rest' - the break between finishing one day's work and starting the next (for most people this is overnight between week days)
  • 'weekly rest' - whole days when you don't come into work (for many people this will be the weekend)

The second and third types of break are almost never paid unless you have to remain 'on call', meaning you are available to work. The first type is often paid, but doesn't have to be unless your contract says so.

How much break time do you get?

The amount of break time you get is usually agreed with your employer. It may be written down somewhere (eg in your contract of employment) or might just be part of your employer's standard practice.

Your employer must give you at least the rest breaks required by the Working Time Regulations. They must also ensure that your health and safety is not put at risk. This means that your employer might have to give you more than the amount set out in the regulations, if this reduces a health and safety risk.

Young workers

If you are under 18 but over 'school leaving age', you are classed as a young worker and have different break allowances to adult workers. You are under school leaving age until the end of summer term of the school year in which you turn 16.

Rest breaks - a break during your working day

As an adult worker (over 18), you will normally have the right to a 20 minute rest break if you are expected to work more than six hours at a stretch.

A lunch or coffee break can count as your rest break. Additional breaks might be given by your contract of employment. There is no statutory right to 'smoking breaks'.

The requirements are:

  • the break must be in one block
  • it cannot be taken off one end of the working day - it must be somewhere in the middle
  • you are allowed to spend it away from the place on your employer's premises where you work 
  • your employer can say when the break must be taken, as long as it meets these conditions

Daily rest - a break between working days

If you are an adult worker you have the right to a break of at least 11 hours between working days. This means as an adult worker, if you finish work at 8.00 pm on Monday you should not start work until 7.00 am on Tuesday.

Weekly rest - the 'weekend'

If you are an adult worker you have the right to either:

  • an uninterrupted 24 hours clear of work each week
  • an uninterrupted 48 hours clear each fortnight

Exceptions to the regulations

Your working week is not covered by the Working Time Regulations if you work in the following areas:

  • jobs where you can choose freely how long you will work (such as a managing executive)
  • the armed forces, emergency services and police are excluded in some circumstances
  • domestic servants in private houses

The rights to breaks apply differently to you if:

  • you have to travel a long distance from your home to get to work
  • you constantly work in different places making it difficult to work to a set pattern
  • you are doing security or surveillance-based work
  • you are working in an industry with busy peak periods, like agriculture, retail or tourism
  • there is an emergency or risk of an accident
  • the job needs round-the-clock staffing (such as hospital work)
  • you are employed in the rail industry and you work on board trains or your activities are irregular or linked to seeing that trains run on time

In these cases, instead of getting normal breaks, you are entitled to 'compensatory rest'. This is rest taken later, ideally during the same or following working day. The principle is that everyone gets a minimum 90 hours rest a week on average. This is the total of your entitlement to daily and weekly rest periods, although some rest may come slightly later than normal.

Mobile workers

If you work in air, road or sea transport you are what is known as a 'mobile worker' for the purposes of the Working Time Regulations. This means that you are excluded from the usual rest break entitlements. Instead, you are entitled to 'adequate rest'. This is a regular rest period long enough to make sure tiredness, or other safety issues, do not cause you to injure yourself or anyone around you.

Do you have to take your breaks?

It is recommended that you take your rest breaks. They are there to protect your health and safety and you are entitled to them.

What to do if you aren't allowed to take a break

You should raise the matter with your manager if:

  • your job is organised in such a way that does not allow you to take breaks
  • your employer does not allow you to take your breaks

If you have an employee representative eg a trade union official or health and safety representative, they can take up the matter for you.

If you cannot solve the problem, you may be able to make a claim to an Employment Tribunal.

Where to get help

If you need further help the Pay and Work Rights Helpline offers free and confidential advice on working hours.