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.