Smoking breaks

Anne-Marie Parkinson
Member - 6 posts

My first question would be whether this ladies' lunch break is paid. If not she would be entitled to a 20 minute paid break during the day under Working Time Regs.

Secondly, has this lady been taking these breaks for a long time - perhaps since a smoking ban came into force in her workplace? If so I suspect she may be able to argue that it has become an implied term of her contract of employment. This would require some careful renegotiation.

I would be wary of just bowing "to her nicotine need" as this would be singling her out as an exception and might cause more problems with other members of staff in the long term.

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Martin

You are perfectly correct that your senior member of staff has no legal entitlement to her mid morning and mid afternoon breaks. The legal minimum (according to the Working Time Regulations) is a 20 minute break during a 6 hour working period ? this is covered by her one hour lunch break. If there are no other breaks mentioned in her employment contract, or staff handbook, then she cannot claim any further entitlement. I would mention that if she has been taking her breaks for a long time then she could claim ?custom and practice?. However she must have been taking the same breaks over several years for this to apply.

Smoking breaks and tea/coffee breaks are normally a matter for negotiation and certainly should be driven by business needs. Arrangements should also take into account break times afforded to other team members in the interests of consistency. However there needs to be some recognition of an employee?s physical need for a cigarette and this is why reasonable breaks need to be agreed between the employee and the employer. Obviously it is not possible for her to smoke at her desk in the same way that others drink their coffee and tea.

My answer would therefore be that, although you should not wholly ?bow to her nicotine need?, you should try to come to some amicable arrangement that suits you both and maintains a reasonable employer/employee working relationship.

Jayn Bond FCIPD

Positive HR Ltd

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Further to my advice above and Anne-Marie's comment. I would just like to clarify that 20 minute rest breaks under the WTR are paid or unpaid. Pay for breaks is a matter for each individual employer and therefore depends on the contract. It is the provision of the break that is required by the law, not the pay.

Martin Newlan
Member - 34 posts

Thank you Jayn for the clarification. We will move carefully, but the employee knew that we were a non-smoking establishment when she joined.

Anonymous

Very difficult one Martin, as an ex-smoker (thankfully)I can understand that the desire for a cigarette can become detrimental to performance if not satisfied, but equally non smokers find it unfair that smokers are allowed extra time off with pay.

Would it be possible to agree 2 short breaks, one either side of lunchtime but those breaks to be taken as unpaid? Or, reduce her lunch break to say 40 minutes and allow 2 ten minute breaks? The non smokers would have fewer objections and your senior staff member, who knew that your company operated a no smoking policy, could hardly complain. Sounds simple so its probably going to be very hard to put in place, but just a thought.

Martin Newlan
Member - 34 posts

Mark makes a useful suggestion, but the member of staff has already negotiated to shorten her lunch break so that she can leave earlier in the afternoon!

Anonymous

Can any employer tell their staff when to take there unpaid tea breaks or is it the the case that the staff can take their unpaid tea breaks when they wish too.

Which one has the right of say regarding this matter?.

Helen Abbott
Member - 31 posts

To respond to Mr Collins's question, an employer can decide when staff can take their unpaid tea breaks.

As Jayn Bond from Positive HR highlights, this tends to work best when there is a degree of negotiation over the timing, which should take business needs into consideration.

I hope this helps.

Anonymous

I feel preesured not to take lunch breaks at work - there is a culture of not taking lunch breaks where I work and if you do sarcastic comments get made. If I do take a lunch break and I'm sat at my desk my boss hovers around me and I get the impression that she feels that if I am sat at my desk I should be working. Though nothing has been said to me directly if I am checking my e mails or browsing on the Internet, or in fact anything not work related, whilst taking my lunch break I get filthy looks. Comments have been made to another colleague, and when I leave the building her reaction is as though I am leaving the job. What are my rights? How could I reassure my boss that I'm not skiving. I keep a meticulous record of my working hours.

Martin Newlan
Member - 34 posts

Robert Ormandi's question is not exactly part of the smoking break thread. In the situation described, I would be on the employer's side of the table, and would strongly advise Robert to approach his manager to clear the air. As an individual, I hardly ever take a break at lunchtime, but I never reproach my staff for taking theirs, and it would be unreasonable to do so. However, there is clearly a difficulty if staff sit at their desks throughout their lunch, particularly when using a computer, because it is not clear to everyone that they are "off duty".

Robert sounds defensive, particularly so if he feels a need to keep "meticulous" time records, implying a lack of trust on both sides. He must get this out into the open.

Anonymous

Hello I work for my retail company from 9am to 3pm. I have to be on the shop floor at 8.55am, where we have a team brief and get some stuff ready for opening of the store. I am not paid for this 5minutes. The law says if I work more than 6 hours I'm entitled to a 20minute break.Is the 5minutes counted as more in this case, and if so am I entitled to a 20minute break?

Anonymous

In response to Robert and Martin above could I point out that not taking a proper break, i.e. one away from your desk, is not benefiting you or your employer.

Many years of workplace research has clearly indicated that a failure to take a lunch break reduces personal effectiveness. Controlled studies indicate that assuming a worker arrives to work at 9.00am at 100% effectveness, without a lunch break by 5.00pm they are functioning at less than 35% effectiveness, however is the lunch break is taken the effectivenes at the end of the day is significantly above 50%.

Lunch breaks pay for themselves, so ecomonic grounds an employer has a right to insist on lunch breaks being taken.

On health and safety grounds tired people have accidents, so by enforcing breaks the employer reduces the risk of accidents.

Regarding an employer's social responsibility, if an employee leaves work excessively tired there is a greater risk of that employee having an accident on the way home, also when they get home of being unable to persue a social life of having relationship problems.

Should an employee claim that a workplace culture of working through lunch breaks caused personal stress, and they had previously brought this to the attention of their employer without suitable reponse, they could use this in a stress related damages claim. They might not win but the financial costs of defending the claim would be significant.

I always advise my client employers to enforce lunch breaks and encourage them away from the desk. If an employer wishes to allow smoking breaks then these must be unpaid to prevent 'unfairness' claims arising from non smokers. After all the smokers could claim their dependancy on nicotine is stress related!

Anonymous

I was interested to find out that the legal break entitlement is 20 mins every 6 hours- unpaid as I was working for a large u.k pub chain and there it was 15mins paid every 4 hours and 30 unpaid for every 6. I have since heard this is fairly normal and wonder if it is for productivity as I cannot see them losing so much time/money otherwise. In my current job I have no idea what is in my contract as I have yet to sign or see one (I've been there 4 months) but a recent management change has made this an issue for me. Really I think it's a case of mutual respect - or should be.

I work part time- two six hour shifts and I smoke. Previously everything worked fine- people weren't bothered about breaks on shorter shifts but had a couple of cigarettes when it was quiet enough, but now I find there can be two of us on the bar and often it's quiet enough to easily have 2 mins for a cigarette but instead we have to have 20 mins unpaid break or nothing. I don't work enough hours to lose this time and often breaks are difficult to cover. I work hard at my job (it's recognised) i'm never late or ill and sometimes work over (unpaid) so a bit of leeway would be nice. This attitude makes me feel like not working very hard at all and I am actually leaving due to this. I woked as a pub manager myself before having a baby and I always found staff worked better for you if you treated them like people not robots. Sorry to rant on but this really annoys me!

Anonymous

Please advise me, We have taken on security guards in an Alarm Recieve Centre for night duty. At the interview it was disussed that leaving the Alarm receive centre for a cigarette could damage the business considerably, and each employee stated that this was not an issue. Some weeks have passed and they are now leaving the premises for a cigarette, there is not issue in them taking a break as an when they please, but again leaving the post Alarm Receive centre is at night could cause serious consequences. Your advice is really needed. oh facilities are in the ARC centre for breaks.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Julie, the slight difficulty you may have (although it's not possible to tell precisely from the facts) is that if the workers are scheduled to work for 6 hours or more than they have an entitlement to a 20 minute rest break which is defined as an "uninterrupted" 20 minutes "away from his workstation". See regulation 12 WTR.

There is a derogation available to you under regulation 21 (specifically 21(b)) but this is subject to allowing compensatory rest anyway under regulation 24.

You may face the argument that in order to allow staff the required break you need more staff so that one absence doesn't create the risk you fear.

Martin Brewer

sam and marie whitlaw
Member - 1 post

we work with vulnerable adults and therefore do not have breaks or a lunch time as such, as we are with them all the day. eating and drinking tea/coffee with them .however smokers seem to wander out frequently for a smoke where as non smokers dont get a break at all .we end up covering for staff who nip out for a smoke and do our own work .is this allowed and how can we approach our employer about this without disarray among the staff who smoke
cheers samual & marie

Linda Mc Comb
Member - 1 post

Hiya, I am a manager of a fashion outlet and I have encountered many problems concerning breaks. As a tea room is provided for breaks, my staff constantly sneak in and out when my back is turned to eat and check their mobile phones. They pretend they are going out the back to go to the toilet or do a check for a customer and when they come back out they are chewing. My personnell department are telling me just to give counsellings, but I want to totally stop this by locking the tea room, and only allow them in and out for their breaks. Is this legal? As Im really pulling my hair out, as it seems the staff have more rights than what I do.

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Linda

The key to these smoking issues, as with similar situations, is to clearly communicate how you expect people to behave and the company boundaries. Also the potential consequences if employees overstep or fail to meet your expectations.

Employment law requires that the employer draws up company policies -which should be reasonable-and communicates those policies clearly. Then employees have a choice - they either comply with the rules or they accept the consequences.

Therefore if you have an expectation about break times, or when employees should use their mobiles, or when employees should access the tea room, then you need to communicate that expectation to all employees. This can be done through a meeting or individually and then a notice on the notice board and the reasons explained. If employees ignore those rules then you can follow a disciplinary process which requires an informal approach first and then formal warnings.

mary platt
Member - 3 posts

i work in a care home and normally stay at work for my unpaid, 30 minute lunch break.
but i go home now because ime not allowed to smoke anywhere on the premises at work, evan the open courtyard.
now my boss, says she will pay me for my break, just to keep me the premises.
can i refuse to accept this, i have worked there for 5 yrs and hardly left the building before at lunch time...

C Smith
Member - 2 posts

We have been having similar issues with smoking and tea breaks however, certain staff are now being told that they must take their tea breaks at their desks. I wondered if a company is legally allowed to do this as a break is surely an individuals own time. The whole approach seems very draconian to me.

Bozena Benton
Member - 50 posts

C - if your tea breaks are paid, the company can require you to stay at your desk. I'm sure however, the manager will have thought about the risk assessment of drinks being spilt onto work stations either near computers or onto documents. Moreover they will also have considered the loss of benefits from informal team building and positive gravpevine links against increased performance.

It may be that they believe that in order to be seen to be fair, if they wish to stop smoking breaks they also need to stop tea breaks

Bozena Benton
Member - 50 posts

Mary,

You manager has every right to ask that you remain at the cae home during your lunch-break in return for the time being paid. If you agree to this the time can be treated as fo those staff who sleep over.

Your manager will need to make sure that you still get your entitlement to appropriate rest breaks.

amanda mitchell
Member - 1 post

my staff have recieved a memo telling them they can not smoke during their break is this legal ? even though they go outside .
amanda

alison wait
Member - 2 posts

Because the majority of the workforce smoke, there is a verbal agreement that they can choose either a 20 min break or 3, 5 min smoke breaks, which is closely monitored to prevent abuse. Is this legal.

Andrew Harding-Jones
Member - 2 posts

I understand that when working more than 6 hours a worker is entitled to a break of 20 minutes, and that this should be taken during the 6 hour period. Dose during the 6 hour period mean that you can only work for 5 Hours 40 minutes before taking the break ?



Could you for example work for 5 Hours 55 minutes before taking the break?

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Andrew
If you are requiring an employee to work 6 hrs for you , then you need to factor in at least a 20 min break during that time. The idea is that they have a break in the middle - health and safety - not that they should work almost 6 hrs before the break comes along.

Gill Rimes
Member - 1 post

Please can you confirm to me whether the 20min break required in law must be paid or can employers make it an unpaid break?

les potter
Member - 23 posts

quote: Please can you confirm to me whether the 20min break required in law must be paid or can employers make it an unpaid break?

my interpretation of this is that it should be paid, however.. i would tend to ask myself the question

if i look after my workforce and do not deduct them money for smoking, are they more likely to look after my business interests while they are working?

As a smoker i am bias, however i would suggest you would get more from your smoking employees if you were to pay them when they need to smoke than you would if you were not to pay them... ( if you look after those who work for you... they are more likely to look after you).this argument could go on and on and on. eventually some one will ask " do i have to pay my employee while they use the toilet?

have we really reach the stage is society that we are all power and money mad and have forgotten how to care about those who are loyal to us?

Zach Reid
Member - 2 posts

Whilst we are taking about breaks, what about toilet breaks. We are an inbound call centre and people tend to disapear for a log period of time, this just happens to be when we have a high call volume coming in. Other examples are that they are just back there lunch or break, using up there allocation, then disappear to the loo for another 10 or so minutes. this could be anything up to 4 and 5 times a day. can we ask that they confine there loo visits to the break times, or is there a legality that would prevent this

Jayn Bond - Workplace Law Network
Online advisor - 68 posts

Zach - if you have a problem with individual employees disappearing from their desks for long periods, then you need to deal with the issue on an individual basis. This is not something that can be covered by legislation. If they are spending too much time away from the phones, then you need to talk to them about it to see what is the problem. If they are just disappearing when it is busy,then just having mentioned the issue, will probably have the desired effect!

James Fairchild
Member - 210 posts

Zach - be aware of possible disability factors that could result in above average use of the toilet.

Les - no obligation in law for the break to be paid (whether just the legal minimum of 20 minutes, or a full hour) but custom & practice/your contracts may state to the contrary.

Completely agree with your points about loyalty.

Hugh McCann
Member - 1 post

Can anyone offer guidance on responsibility for the emptying and cleaning of external ashtrays in smoking areas?
Non smoking cleaning staff have requested that they be excused this task from their duties on health grounds.
Can this task be made enforceable if it is included in a job description or do staff have a right to refuse such duties?
The company has a no smoking policy but does provide smoking areas which obviously need to be kept clean and tidy.

Claire Fuller - Workplace Law Network
Online advisor - 32 posts

On a similar note to the previous post, Workplace Law Network is currently trying to put together some information on how facilities managers are coping with the smoking ban.

So, has anyone come across any unforeseen problems with the ban? And how have you dealt with these problems?

Or has the smoking ban been implemented in your premises without any fuss?

Let us know!

Charles Buckton
Member - 2 posts

In response to Hugh McCann - post 16/01/2008.

On what grounds would it effect their health? If ashtrays are used correctly, then the only throw back would be ash in the air. This can be combatted by issuing face masks. Our cleaners are more than happy to empty ashtrays and sand bins as they are done outside normal break patterns, employees have also been instructed to extinguish smoking materials properly.

Mark Shuttleworth
Member - 39 posts

I don't think there are any issues with cleaning out ashtrays provided suitable PPE is worn. Unfortunately its akin to cleaning the toilets or unblocking sinks and should be part of the duties allocated to the cleaner of that area.

Unless the ashtrays contain smoldering cigarettes i can't see any risk to health above that of cleaning any other dirty area. But i have to admit it really does stink!!

Bernard Crouch
Member - 4 posts

Although unpleasant, the effects of either 2nd hand smoke or indeed ash have been grossly exaggerated by the anti-smoking lobby. If everything that might just harm us was identified then we ought to be banning shampoo, anti perspirant and diesel fumes along with Prawns (which contain Arsenic). Sir Richard Doll the epidemiologist who discovered the link between cancer and cigarettes stated that 'the risk from other people's cigarette smoke is so small that it doesn't bother me' we have a enormous increase in Asthma sufferers in the UK and interestingly they mostly come from ultra clean non smoking homes!

VIVIENNE O'BOYLE
Member - 1 post

Aside from any health concerns in handling the ash trays/sand bins, it boils down to someone having to clear away someone elses' dirty habit. I certainly wouldn't want to do it for any amount of money and as such wouldn't expect any of my cleaners to do so either. I would therefore ask each employee to get rid of their own cigarette ash/butts.

V. O'Boyle
Nottingham

Glenn Shelton
Member - 2 posts

Our company has recently afforded smokers two offical smoking breaks per day. Non smokers are NOT afforded any additional breaks. Is this legal, it seems to me that as a non smoker I have forced to work longer hours than smokers?

Martina Cannon
Member - 1 post

Our company have recently introduced a smoking policy, this was due to the minority of smokers abusing the stuatuation and taking too many breaks, however as I work an 8hr day with 45mins lunch (unpaid) I don't get any breaks, and the new smoking policy states that we are now allocated 2 smoke breaks, one in the morning and one in the afternoon and the time we take for these breaks i.e. 15 mins in total we then have to make up the time either by coming in early or taking it off our 45 min (unpaid) lunch break, but if we are entitled to a 20min break after 6hrs should this be allowed?