Provision of Lunch break

Smita Jamdar - Martineau Solicitors
Online advisor - 17 posts

By virtue of reg 12 of the Working Time Regulations 1998 an adult worker is entitled to a rest break where his daily working time is more than six hours. The rest break must be a period of not less than 20 minutes and may be taken away from his work station where there is one. However, details of the rest break including its duration and the terms upon which it is granted may be stipulated in a collective or workforce agreement and aside from being modified can be excluded altogether (reg 23a).

Although the regulations do not make provision for an agreement with an individual worker excluding a rest break, provided that the arrangement is agreed in writing and in the spirit of the regulations it is not likely to cause a problem.

It is also worth noting that this is not a right which can be enforced by the HSE and the employee's only recourse is to the Employment Tribunal. If the employee is happy with the terms agreed he/she is unlikely to bring a claim.

Anonymous

Is it also essential that an employer must provide a rest area (for lunches...)?

Pls advise - thanks,

Tima

Johanna Burns
Member - 12 posts

Excluding WT Regs, surely the employer could be contravening sec 2 of HASAWA if he permitted a fatigued employee to work continously, particulalrly if the work was arduous.

Anonymous

Question. I have just be told that it is mandatory to take a 30 minute lunch break when working 6 hours per day. I have been working for this company for 4 years but recently contracted to a new company this year. I had been working without a lunch and for this long and now my manager makes it a rule. Can I fight this?

Ciaron Dunne
Member - 85 posts

In answer to Tima's question above, employers are required to provide rest facilities under the Workplace (Health, Safety and Welfare) Regulations 1992.

However, this doesn't necessarily mean that you need a dedicated rest room. The HSE guidance states that: "Work areas [i.e. desks] can be counted as rest areas and as eating facilities, provided they are adequately clean and there is a suitable surface on which to place food."

You can download the free guidance (PDF format) from:

http://www.hse.gov.uk/pubns/indg244.pdf

Or view the relevant section of the regulations:

http://www.hmso.gov.uk/si/si1992/Uksi_19923004_en_2.htm#mdiv25

Hope that helps.

Ciaron Dunne

David Savage
Member - 2 posts

I work from time to time at a night shelter for the homeless. There are two night staff on duty every night and they have been informed that they are required to take one hour break (unpaid) during the night but cannot leave the shelter because there needs to be two staff on duty at all times. Is it legal to insist that someone take an hours break with restrictions and without payment?

sheena farenden
Member - 60 posts

If it is an unpaid break I presume you can go anywhere on site even to sleep. This would then leave your colleague and yourself at risk when the other is on a break. Ask to see the Risk Assessment

If you are expected to take a break and stay on site but still be with your colleague etc how can this be a break as per HASWA and how can they justify non payment.

If you have a union discuss it with them. If you do not have a recognised union it does not stop you joining a union and still using them for help.

Maybe you could check this with ACAS as well

James Fairchild
Member - 257 posts

David,

Yes, rightly or wrongly, your employer can insist upon you taking a break of whatever length they prescribe - there may be a sound business reason for this.

HOWEVER - for a break to be a break, the employee must be free to dispose of his own time.

In this scenario, I would suggest that this is not a break at all, and is in fact the employee being available for work.

The employee MUST be allowed a 20 minute break where he can do whatever he wants to. If the company want the employee to be on site for whatever procedural purpose, they MUST either be paid, or negotiate a deal to the employees' advantage.

If the employee wanted to enforce his rights, they could apply to the employment tribunal for an order instructing the company to allow them to take their breaks.

David Savage
Member - 2 posts

Thank you Sheena and James for your helpful advice. Much appreciated.

janet burton
Member - 49 posts

First: ADULT individuals can opt out of the 20 min break if they wish (they must opt out in writing, and agree a period of time to opt out), but there must be the opportunity to take it if they wish (away from their work station). Young workers must have a longer break time (30 mins) and do not have opt out rights - which is why many companies have a non-opt out 30 min break - their regs are drawn up for all employees at the minimum standard for their young workers. Both sides must agree to any opt out, so if management say no the answer is no, you cannot opt out.
Second: according to the case evidence, apparently breaks where you are available on call, but not working, still count as breaks. Usually this would be included in your contract conditions. Night workers have extra working time restraints, which may be why the hour break is fixed in David's case.

kieran dowling
Member - 3 posts

I think you will find that there is no opt out from the 20 minute break. The opt out applies only to 48 hour limit.