Here in the UK we love a bit of sunshine. In London, office workers fill the parks and green spaces taking lunch breaks far more enthusiastically than ever before, topping up tans before heading back to their desks. But what can an employer do if employees take longer than they are supposed to, or take breaks at unscheduled times. With reports that an employee in Japan was disciplined for taking his lunch break 3 minutes early, our UK employment lawyers look at the Working Time Regulations and rules on breaks in the working day. We also look at what disciplinary action an employer can take if an employee fails to follow the rules.
The rules on breaks in the working day
The Working Time Regulations 1998 contain the rules about breaks in the working day – rest breaks and also daily rest breaks and weekly rest breaks.
The Working Time Regulations provide that a worker is entitled to an uninterrupted break of 20 minutes when daily working time is more than 6 hours. The break has to be given during the working day, not tagged on to the end of it. As employment claim solicitors know only too well, this is a right that applies to workers, not just employees, and the break does not have to be paid.
Young workers are entitled to a 30 minute break if they are working for 4.5 hours or more – worth bearing in mind as students take up summer jobs
Extending breaks through the contract of employment
Anyone familiar with employment contracts whether in London or elsewhere in the UK will understand that the break in the working day can be extended from 20 minutes in the contract of employment. The employment contract can also include a provision for the rest break an employee is entitled to, to be paid. If an employee is unsure whether he or she is entitled to longer than a 20 minute unpaid break, and whether he or she will be paid for the break time, the employment contract is the place to look.
There may also be workplace rules, perhaps a rota or shift that requires individuals to take breaks at particular times during the working day, to ensure safe coverage of an operation, or to ensure appropriate levels of cover for some other reason at all times.
Disciplinary action when breaks aren’t respected
If an employee has to take longer than the specified rest break for a good reason, he or she can ask the employer for permission. Depending on the reason for extending the break, it may well be reasonable for an employer to accede to the request – and there would be nothing to stop an employer doing this on a case by case basis. However, with the beautiful weather we’re enjoying at the moment, some employers may find their staff absent for longer at lunchtimes or rest times, without indication of any good reason other than wanting to top up their tans.
If someone is late back from a break a couple of times, it may be appropriate for a supervisor or line manager to have a quiet word and try to resolve the problem informally. Explaining how the employee’s action is impacting on productivity and on other members of the team may also be appropriate.
If an employee persistently comes back from a rest break late, or heads off early, with the result that he or she is taking time beyond the permitted rest break, it may be appropriate to consider disciplinary action against the employee. Many top employment solicitors will advise that this is the case especially if the employee has already been spoken to informally.
As with any disciplinary action, the employer needs to act in accordance with the workplace disciplinary policy and to make sure it follows a fair procedure when it takes disciplinary action, in accordance with the ACAS code of practice.
In particular, the employee needs to be able to have the opportunity to explain him or herself, and to have the right of appeal against any disciplinary action that is taken. Remember that even if the disciplinary action that is taken isn’t dismissal, if the employer has acted unreasonably, the employee might be in a position to resign and treat him/herself as having been ‘constructively dismissed’.
Employers should also take care
A key issue that might be taken into account especially during this spell of incredible weather is the attitude the employer has taken, or the impression given, that perhaps there has been a relaxation of rules. It may be that the employer has offered more flexibility during the hot weather – earlier start times so people can finish early, or the opportunity to come in early and stay later and to take longer in the middle of the day. If this is the case, the employer needs to be completely clear about what is and isn’t expected, to avoid confusion and an employee inadvertently getting it wrong.
OTS Solicitors regularly handle issues arising out of disciplinary action for employers and employees. We offer practical and intelligent advice on UK employment law and often provide training to employers to help avoid litigation. To talk to one of our top London employment lawyers, please call 0203 959 9123.
Posted on: Friday, 29 June, 2018