Legal Q&A: Breaks and working time

Greg Campbell, partner and head of employment group (London office) at Faegre & Benson, looks at workers' entitlements to rest breaks.

Recent press coverage has suggested that the traditional lunch hour in the UK has shrunk to a mere 19 minutes 42 seconds. In the US, Wal-Mart has recently been fined $172m (£97m) for failing to provide employees with lunch breaks and, in some cases, pressurising them into skipping breaks.

If we take the view that what happens in the US is a useful guide to what's coming in the UK, now seems a good time to recall that the Working Time Regulations give workers minimum rights to breaks and rest periods.

The regulations implemented the EC Working Time Directive 1993. They are probably best known for introducing the limit of 48 hours on the working week, but they also impose additional obligations on employers.

Who is entitled to rest breaks?

The regulations offer protection to 'workers', not just employees. Truly self-employed workers who are undertaking an activity on their own account fall outside that definition, but it does cover the majority of the UK working population. Certain workers (such as transport workers) are currently subject to special rules.

What rest periods are workers entitled to under the regulations?

Each worker is entitled to:

• at least 11 hours off between each working day
• at least one complete day (24 hours) off each week, or two days off each fortnight
• a 20-minute break in any shift of six hours or more.

Young workers (aged under 18 but over the compulsory school age) are entitled to shift breaks of 30 minutes when working a shift in excess of four and a half hours, a daily rest period of 12 hours and a weekly rest period of 48 hours.

When should a worker be given compensatory rest?

In essence, where the employer prevents the worker from taking a rest period or rest break or interrupts a period of rest, the worker should receive compensatory rest. The interruption might occur because the work carried out is divided up over the course of the day (as in the case of a split-shift worker) or where workers change their shift pattern, which results in that worker not being able to take the full daily or weekly rest period. The length of compensatory rest given to a worker should be sufficient to make up for the rest period that the worker
has missed.

Are there special allowances for workers carrying out monotonous work?

The regulations state that if an employer organises a work pattern that puts the health and safety of a worker at risk - particularly if the work is monotonous or the work rate pre-determined - the employer must ensure the worker is given adequate rest breaks. This places the onus on the employer to give the worker additional breaks, but does not specify a period of time that would be regarded as adequate. Employers that feel their working patterns may create problems should carry out a risk assessment to decide whether action is required.

What are the penalties for non-compliance?

Failure to comply with the regulations in respect of rest breaks and rest periods could see workers seeking compensation from an employment tribunal. The amount that can be awarded is unlimited, and can be whatever the tribunal considers just and equitable in the circumstances.
Workers whose careers suffer because they insist on taking breaks that other, more favoured, workers don't take, may bring a claim on the grounds that they have suffered a detriment. Again, there is no cap on the compensation.

Failing to give compensatory rest to night workers may lead to criminal liability under proceedings initiated by the Health and
Safety Executive.

What is best practice in this case?

It is the employer's responsibility to allow workers to take breaks, but any obligation falls short of requiring employers to ensure workers actually take them. It is only when an employer requires the worker to work during a break or rest period that the worker has to be offered compensatory rest. If the worker chooses to work through the break or rest period, or is offered compensatory rest but refuses to take it, there is no further obligation on the employer to take steps to ensure the rest period is taken. However, given the focus in the regulations on preventative actions, employers should not simply turn a blind eye to these matters.

While there is no legal requirement to keep records, the absence of any could make it difficult to defend claims brought by workers claiming they have received inadequate breaks. Employers should consider whether there is a simple mechanism for tracking rest breaks to ensure staff have as much time off as necessary.