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Can I Leave the Premises on my Lunch Break?

By: Jeff Durham - Updated: 10 Feb 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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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
Hi, I work in an airport. And in order to have a break outside (Tab time) I must leave the building. Through security. which takes 10 mins to get out and 10 mins to get in. its quite a distance to walk to get out. Im only 25 minute break. Thats leaving me with 5 minutes of fresh air. is this correct or should the not include security checks ?
John - 6-Jan-17 @ 1:55 PM
We are working in a HMP and are escorted everywhere. If I wish to leave the HMP for my unpaid lunch but can not due to lack of escorts should I be paid for lunch as I have not been able to leave the premises. My boss wants us to stay on site due to time taken leaving and returning to the HMP, again does this count as lunch?
Pez - 22-Nov-16 @ 12:33 PM
Hello. I work 5 mind away from my job (sears) so in my lunch I drive home and eat there. I was told by my manager thru text today that I will not be allowed to leave the building and to start bringing my own lunch. I feel like this is not right. I understand that we are short on staff people however that is not my responsibility. I need advise. I am from california
Jay - 15-Nov-16 @ 11:43 PM
Hi I work 12hr shift in a care home and at the moment we have 2 20 mins breaks and a 30mins break my employer has informed us today that soon they will be making us take our breaks on the floor with the resident is this aloud as I wouldn't say that it is a break if I am still with the residents
Tania - 31-Oct-16 @ 9:27 PM
Hi!i am working12hours shift!i have my break paid(15min ,at11,30min in the lunch time ,15min in the afternoon )but now ,my manager said that I am not aloud to smoke on my brake, and if I do, my brake won't get paid. Is that legal for her to not pay my brake??
maybe59 - 16-Oct-16 @ 10:14 PM
Work as a psw in the same location for 8 years. I can not leave the premises and my break is deducted from me. At times I don't get my breaks as call bells need to be answered so I need to leave my break.I work a 96 hr 2 week cycle and only get paid 88 hours. Like I said I'm required to stay on site and leave my meals or breaks for work.Why am I getting my 8 hours every two weeks unpaid? Am I not in title to pay?
Sherri - 8-Oct-16 @ 4:14 AM
My grandson works at a fast food restaurant( Burger King). He works 10 hours a day M-F. He's not allowed to take a break and was told by his manager that she does not have to give him a break as he is an adult. Is this legal? We live in South Carolina. Also, she told him that he's not going to have every weekend Off. Is that legal if he 's already working 5 days a week?
She - 3-Oct-16 @ 5:17 PM
Rebel - Your Question:
HiI work as a nurse on days and nights. On a day shift we are allowed a1 hour unpaid break and can leave the premises. On a nightshift we cannot leave the premises as there are no addittional staff to cover the ward. Should my employer pay me for the hour that I cannot leave the premises.

Our Response:
It depends on what you have agreed to in the terms and conditions of your contract. If you have agreed to those terms, then your employer does not have to pay you for the nightshift break.
WorkplaceSafetyAdvice - 8-Sep-16 @ 11:05 AM
I work at a bank. Due to security reasons, we are required to have two employees on premises in order to have our doors open. This means two employees in the lobby area, or just off it in an office (I.e. One person cannot man the lobby while the other one sits in the break room). When we are at minimal staffing, we are still required to clock out for our 30 minute lunch. Even though we cannot leave the building, they still tell us that we need to clock out. Is this legal?
AlwaysThinking - 7-Sep-16 @ 10:08 PM
Hi I work as a nurse on days and nights. On a day shift we are allowed a1 hour unpaid break and can leave the premises. On a nightshift we cannot leave the premises as there are no addittional staff to cover the ward. Should my employer pay me for the hour that I cannot leave the premises.
Rebel - 7-Sep-16 @ 1:50 PM
Hi i work in care home with old people. Yesterday i was court sleeping on my unpaid breaks and not even allowed to leave site on my breaks, can they suspend me for it Kind regard chloe
Turk - 1-Sep-16 @ 11:09 PM
I work in a daycare from 8:30-5:30 with 1 hour unpaid lunch. Just recently my boss added to the schedule that it is now mandatory to stay on the premises during our 1 hour unpaid lunch "incase of an emergency." All government buildings, banks, post offices close at 5:00 so i have no time in the day to complete my responsibilities. Is my enployer allowed to do this?
Chels - 1-Sep-16 @ 4:47 PM
jaz - Your Question:
I work 7-3 get pay 8hrs. But my boss don't let me go out in my 30min lunch it's that part of the law. Because he said if I leave work do not get back to work

Our Response:
If your contract specifies you are not allowed to leave work on your lunchbreak for a particular reason, then you have agreed to these terms and must keep to them.
WorkplaceSafetyAdvice - 31-Aug-16 @ 12:42 PM
I work 7-3 get pay 8hrs.But my boss don't let me go out in my 30min lunchit's that part of the law. Because he said if I leave work do not get back to work
jaz - 30-Aug-16 @ 8:52 PM
Hi there, My sales lady takes 8-12 smoking breaks daily at work +- 3 to5 min every time she goes outside the boutique ( clothing ) must i also including those mini breaks in her lunch time ? She also goes MAD at me when i don't allow her to eat her KFC or STEERS inside the boutique ! Is she allowed to eat inside ?
Gianni - 11-Aug-16 @ 1:33 PM
Laura - Your Question:
Hi my shift starts at 10am I finish at 11pm and then have to stay overnight till 8am although I try to sleep what is the law please I am a support worker

Our Response:
It depends on your contract and what you have agreed to. If the hours you are working are considered part of your contract terms, then your employer is working within the law as long as you have the designated breaks etc and time off between shifts to recuperate.
WorkplaceSafetyAdvice - 8-Aug-16 @ 11:49 AM
Hi my shift starts at 10am I finish at 11pm and then have to stay overnight till 8am although I try to sleep what is the law please I am a support worker
Laura - 7-Aug-16 @ 11:17 AM
Hello i work at a daycare center and i dont get paid for a lunch break and my boss say i can't leave to build is this rigth?
nika - 29-Jul-16 @ 5:59 PM
Hi I work 10 hour night shifts as a carer of which we get a 1 hour lunch break unpaid. My employer insists we should not leave the premises as we have a duty to care and there should be a minimum of 2 care staff covering at any given time. There is only 2 staff working each night shift which mean it's impossible! Should I be paid for this hour? It doesn't seem morally right as if a buzzer goes it occasionally needs both of us to respond.
Amy - 20-Jul-16 @ 1:12 AM
Taffy - Your Question:
Hi I work 2 till 10 lates and 8 to 4 im security at my place of work and on a probation time iv been told because im security I cant leave till the last customer has left store and say I have to stay to lock up my boss says 'its in my job details' but its says nothing in my contract about locking up or being a key holdet but I finish at 10 or 4 by law can my my employer stop me from clocking out at end my of my shift.

Our Response:
If your contract doesn't specify that you are a key holder and/or are responsible for locking up, I suggest before you approach your employer regarding this issue, you give ACAS a call to make sure you are fully aware of your rights.
WorkplaceSafetyAdvice - 18-Jul-16 @ 11:40 AM
Hi i work 2 till 10 lates and 8 to 4 im security at my place of work and on a probation time iv been told because im security i cant leave till the last customer has left store and say i have to stay to lock up my boss says 'its in my job details' but its says nothing in my contract about locking up or being a key holdet but i finish at 10or 4 by law can my my employer stop me from clocking out at end my of my shift.
Taffy - 17-Jul-16 @ 10:57 AM
I work in a nursing home doing 11 hour night shifts and we get an hour break. We're not allowed to leave and we don't get paid for breaks, but they say if someone left on break there wouldn't be enough staff to respond to an emergency such as a fire, what are my rights in this situation?
Matt - 11-Jul-16 @ 3:33 AM
gilly - Your Question:
As I am head house keeper for a care home.one of my h/keepers is under 18 and gets 1/2hr lunch break. which she gets paid for.she lives across the road and goes home for lunch.now being told she not aloud to leave the premises during her lunch.is this correct.

Our Response:
It depends on the terms of her employment contact and what it says regarding this. If she is paid and there is nothing in her contract to stipulate she cannot leave the premisis, or the rules over leaving the building may change, then she can have lunch off site until her contract is re-negotiated. If she disagrees with the new legislation, she would have to take it up with your employer directly.
WorkplaceSafetyAdvice - 6-Jul-16 @ 12:17 PM
As I am head house keeper for a care home .one of my h/keepers is under 18 and gets 1/2hr lunch break. which she gets paid for.she lives across the road and goes home for lunch .now being told she not aloud to leave the premises during her lunch .is this correct .
gilly - 5-Jul-16 @ 3:02 PM
steve - Your Question:
I work a 12 hour shift and get paid my breaks ,because I get paid and are needed to attend breakdowns ,I am not to leave site for a cig, after smoking for 30 years , I am finding the stress to much.have I any rights ??

Our Response:
It depends what it says in the terms and conditions of your contract. If your contract specifies you are not allowed to leave the site and you have agreed to this (by signing the contract) then you do not have any rights.
WorkplaceSafetyAdvice - 4-Jul-16 @ 2:25 PM
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