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Can I Leave the Premises on my Lunch Break?

By: Jeff Durham - Updated: 23 Nov 2017 | comments*Discuss
 
Work Break Lunch Break Working Time

Q.I work with children anything up to nine and half hours a day and get given one half hour break unpaid whilst the children are sleeping. I appreciate the children still need looking after, but if my employer does not pay me for my breaks can she then prevent me from leaving the premises during my half hour break?

(Miss Joanna Walley, 23 September 2008)

A.

The Working Time Regulations stipulate that if you are over 18, you are entitled to a 20 minute rest break where your daily working time is more than 6 hours per day and, under normal circumstances, under the legislation you are absolutely entitled to take that rest break wherever you want to take it which includes leaving the premises. If you are under 18, you're entitled to a 30 minute break whenever you work a shift that is at least 4 and a half hours of continuous work and, once again, you can take that break away from the premises.

However, in this instance, where complications arise is that there are a number of exceptions to the regulations when it comes to leaving the premises.

With regards to your own specific issue, one of the exceptions to the Working Time Regulations when it comes to rest breaks stipulates that the rules apply differently if “there’s an emergency or risk of an accident”. Therefore, your employer could legitimately argue that in spite of the children being asleep, there needs to be a member of staff on the premises in the event that an emergency or accident was to occur.

However, as you’re not being paid for your lunch break, you could then legitimately counter that argument by saying that if you’re unable to leave the premises then, in effect, that therefore means that you're still on ‘work time’ and that even if they still give you the 20 minute break (which is required by law), then you have every right to ask them to pay you for it.

Basically, there are two solutions. Either the employer needs to provide an additional staff member to cover for you whilst you go on your unpaid lunch break and that will mean you can leave the premises if you so choose. Or, alternatively, if they are not prepared to do this, then you have the right to be paid for the time you are keeping an eye on the children at lunchtime, in spite of the fact that you are having your lunch at the same time.

Should your employer not agree to either of these solutions, then your next step would be to seek advice which might also result in you having to take them to an Employment Tribunal to force them to pay you for the time you need to remain on the premises. One final point, however, is that your employer is only obliged to give you a 20 minute break (whether paid or unpaid) not the 30 minutes you’re currently getting, unless you are under 18 where they must give you 30 minutes. And, with you saying you work “up to 9 and a half hours”, should there be any days where you work for less than 6 hours, your legal entitlement may not be the same.

ACAS run an advice helpline and will be able to advise you further.

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I drive a mini bus and I get a half hour unpaid break everyday. The break is half way through a shift, so no issues there. However the break has to be taken on the road with the vehicle and this is always in a different location, so I technically cannot leave the vehicle for to long as parking is always an issue. My question is as the break is unpaid should I not be able to do whatever I like in this time, which includes leaving the vehicle unattended. Technically I would be liable if the vehicle got a parking ticket as I parked it, but again if I'm not working for the company at that time.
Buster - 23-Nov-17 @ 7:10 PM
Ruby14 - Your Question:
I work in fashion retail doing 9 and a half hour shifts! On days where I am the only manager instore, am I allowed to leave the premises to smoke?

Our Response:
Much depends upon your contract and what it says. As a rule, smoking breaks aren't a legal entitlement, however, 'rest breaks' are - and by law you are allowed a 20 minute break for every six hours you work - what you do in that break is usually up to you. This may include leaving the premises to smoke. You can see more about smoking entitlement via the Worksmart link here . Hopefully this will fully answer your question.
WorkplaceSafetyAdvice - 24-Oct-17 @ 10:14 AM
I work in fashion retail doing 9 and a half hour shifts! On days where I am the only manager instore, am I allowed to leave the premises to smoke?
Ruby14 - 23-Oct-17 @ 2:45 PM
Jay - Your Question:
I’m a night care assistant I’m not paid a break but all other night staff are this only applies to new staff but I’m not allowed to leave the building and I have to come off my break in an emergency and am expected to work for free is this legal or do they have to pay me and should I be aloud to leave the premises if I am not paid my break as I don’t know if there a special circumstances if you are a care assistant that you are obligated to stay on site on a unpaid break and have to work in an emergency even on your break

Our Response:
If you agreed and signed the contract, then in principle you have to stick to the terms. By agreeing to the terms your employer has put forward, you have agreed to opt out of the usual European Working Time Directive, please see link here . However, if you are on an unpaid break, then you should be able to spend that break however you choose, which includes leaving the building. Also, if you are called on an emergency, your employer should allow you to return to your break once the emergency is over. Many employers will attempt to try to push the boundaries of the rules. But by reading the terms of your contract, and speaking to ACAS to find out your rights, you should be able to resolve this issue with your employer informally.
WorkplaceSafetyAdvice - 13-Oct-17 @ 10:07 AM
I’m a night care assistant I’m not paid a break but all other night staff are this only applies to new staff but I’m not allowed to leave the building and I have to come off my break in an emergency and am expected to work for free is this legal or do they have to pay me and should I be aloud to leave the premises if I am not paid my break as I don’t know if there a special circumstances if you are a care assistant that you are obligated to stay on site on a unpaidbreak and have to work in an emergency even on your break
Jay - 6-Oct-17 @ 12:23 AM
My dads employer is now saying he is not allowed to Leave the building during his break whilst he is clocked out are they allowed to do this
Ap - 28-Sep-17 @ 5:59 PM
Hello I believe this is a sensible option. My Grandson once tried to leave school early and got in a lot of trouble. But at least he enjoyed my jelly sandwiches. Please get back to me soon and let me know how you resolved this issue. Thanks.
SpeedyG - 14-Sep-17 @ 10:26 AM
I work in a care home I'm also the named fire warden for the shift. Can I leave the building during my unpaid break?
stupot - 1-Sep-17 @ 12:08 PM
I was told by my roomate that they had a company meeting today. One employee asked a question "how come we are not allowed anymore to leave the company premises while the implementing supervisor can?". His response was "because I'm the supervisor and you guys are just workers". Please advise.
Lynn - 24-Aug-17 @ 9:54 PM
@Rach - yes, if your employer thinks it would affect the business, then yes.
Jo - 31-Jul-17 @ 3:38 PM
Can my employee ban anything hot or cooked from the premises when we are on break. My employer is stating that we are no longer allowed to have any hot food at all on the premises as it is not fair if the customer can smell it. Can they dictate what staff can and can't eat for lunch.
Rach - 29-Jul-17 @ 7:35 PM
M - Your Question:
I work for a privately owned business, I have be told that I have to sometimes work on my break and I'm not allowed to leave the building for my breaks. Is this legal?

Our Response:
You would have to read the terms and conditions of your employment contract to find this out. However, as specified in the article, by law you are allowed a 20-minute break for every six hours you work. If you cannot take your break at the allotted time, then you should be given a compensatory break as near to the time of your original break as possible.
WorkplaceSafetyAdvice - 14-Jul-17 @ 2:35 PM
I work for a privately owned business, I have be told that I have to sometimes work on my break and I'm not allowed to leave the building for my breaks. Is this legal?
M - 14-Jul-17 @ 8:14 AM
Bcleaves - Your Question:
Is it right for an employer to stop you leaving the building on paid breaks? Recently at work a new manager has implemented this rule, so we are no longer allowed to leave the building on or 15 min paid breaks but still can on unpaid breaks

Our Response:
If this decision does not form part of your contract then you do not have to abide by the decision if your contract specifies you can leave the building. You would have to agree to the new terms, otherwise the terms of your contract still remain. However, if you do not feel the new decision is fair and you object to it, then you would have to try and resolve this with your employer directly.
WorkplaceSafetyAdvice - 13-Jul-17 @ 12:44 PM
We are now being told as hourly employees (just 3 of us) that if we leave the building we must clock out.Everyone else is salaried and they take long lunches and never clock out.If liability is supposedly the reason companies want hourly people to clock out I don't understand.If you're off-site for lunch and you have an accident, why should it make a difference if you are hourly or FT? I may leave the office 1 time a week for lunch and the hourly people take 1+ hours every day.....the liability excuse just doesn't wash.
Red - 12-Jul-17 @ 5:46 PM
Is it right for an employer to stop you leaving the building on paid breaks? Recently at work a new manager has implemented this rule, so we are no longer allowed to leave the building on or 15 min paid breaks but still can on unpaid breaks
Bcleaves - 12-Jul-17 @ 8:17 AM
angie - Your Question:
I WRK AT A NON PROFIT ORGANAZATION. (A THRIFT STORE) ON OUR 15 MIN BREAK WE ARE NOT ALLOWED TO LEAVE THE BUILDING. TO TAKE OUR BREAK. IS THAT AGAINST THE LAW

Our Response:
You would have to read the terms and conditions of your contract and what you have agreed to by signing the contract.
WorkplaceSafetyAdvice - 10-Jul-17 @ 10:27 AM
I WRK AT A NON PROFIT ORGANAZATION... (A THRIFT STORE) ON OUR 15 MIN BREAK WE ARE NOT ALLOWED TO LEAVE THE BUILDING ... TO TAKE OUR BREAK. IS THAT AGAINST THE LAW
angie - 9-Jul-17 @ 7:49 AM
Hi I currently work 40 hours and paid for 39 I have 1 hour unpaid lunch break which I'm Now being told that due to lack of management cover I'm unable to leave yh building. What are my rights ? Can I asked to be paid for that 1 hour.
Ls - 1-Jun-17 @ 7:27 AM
Mcdees - Your Question:
My Employer says we are a not allowed to leave the building, which means no going outside at all.If we do we will be locked out, or be taken of the schedule. can she legally remove us on the schedule for not complying with her rules?

Our Response:
Much depends upon what your contract states and what you have agreed to be signing the contract. However, as a rule if you are on a lunch break you should be able to spend the lunch break how you choose. I advise you to read your contract and give ACAS a call if you need any further advice.
WorkplaceSafetyAdvice - 11-May-17 @ 2:19 PM
My Employer says we are a not allowed to leave the building, which means no going outside at all... If we do we will be locked out, or be taken of the schedule... can she legally remove us on the schedule for not complying with her rules?
Mcdees - 10-May-17 @ 11:40 PM
Hgv driver take correct driving breaks but company saying will not pay us our breaks and take the 45 mins back off us 15 then 30but we carnt leave the vehicle un attended is this correct
Ned - 6-May-17 @ 8:27 AM
I work in a premises that will not allow us to leave during breaks (which are unpaid) they also do not allow us to talk to other collegues during it. We are made did in the staff room by ourselves. Is this legal?
Wildo - 29-Apr-17 @ 10:30 PM
CA. OSHA says an employer must give his full time employees two ten minute breaks and one thirty.
Damionadams - 16-Apr-17 @ 9:19 AM
Hi i work from 9.30-5.30 with 30 min break, if we do not have enough staff i have been told i cannot leave the work place. can i insist i take the full break and leave the building
freddy - 10-Mar-17 @ 3:51 PM
Sian - Your Question:
I work and get paid for 40hrs a week. For the past 2yrs I have had an hour lunch break (unpaid) my boss is now saying I am only to have 20 minutes break and then the other 40 is taken between customers. I work on my own all afternoon. But they are not paying me for any of my break. Is that allowed? What if I don't get my 40 minutes because the shop is busy?

Our Response:
Your employer actually only need give you a 20 minute break for every six hours you work. Therefore, your employer is entitled to change the terms of your contract, if there is a current clause in yoru contract to say your employer can. You would need to read your contract to find out.
WorkplaceSafetyAdvice - 16-Feb-17 @ 12:51 PM
Let me be clear, i work 2 nights 7pm-7am the rest of my week i work during the day. In total i work 39.5hrs due to 30mins being automatically deducted
Cali714 - 10-Feb-17 @ 6:06 AM
I work 2 nights a week, 12hrs each, well 11.5hrs (30mins automatically deducted), 7pm-7am, as a concierge/security. I have to pass out meds, secure the facility (make my rounds every 2hrs) and make sure residents are fine throughout the night and answer phone calls (if any).My boss told me that i "could" take a break, yet i can't leave the facility and i still have to answer phone calls and assist residents if they need something due to me being the only employee here at night. So are they allowed to still deduct my time worked or am i to be paid every minute of it? Also working nights would put me in overtime if the 30mins weren't being deducted, so would they have to pay me the hrs i should have gotten as Time and a half for overtime?
Cali714 - 10-Feb-17 @ 6:01 AM
I work and get paid for 40hrs a week. For the past 2yrs I have had an hour lunch break (unpaid) my boss is now saying I am only to have 20 minutes break and then the other 40 is taken between customers. I work on my own all afternoon. But they are not paying me for any of my break. Is that allowed? What if I don't get my 40 minutes because the shop is busy?
Sian - 9-Feb-17 @ 6:59 PM
Hi I work in a freezer 8 hours shift days and after noons some times it cold as minus 30 mi breaks on a 6 till 2 shift 7 am 15 minutes .8am 40 min. 10 am 40 minutes . 12 am 40 minutes and 1.30 finish are my companybreaking the law as cold its minus 30 all shift
cold one - 30-Jan-17 @ 7:38 PM
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