Rest breaks at work: employers’ guide

The rules on taking breaks at work are covered by the Working Time Regulations 1998 and your employee’s own contract of employment.

Whether or not these breaks are paid is entirely your decision as the employer, and should be stated in the employee’s contract.

Most employees have a right to a break of twenty minutes if they work for six hours or more. The break can be away from their desk and, as stated, does not need to be paid.

The break may be taken at any point during the working day, but cannot simply be tagged on to the beginning or end of an employee’s shift.

There are some employees who do not qualify for this break, for example senior executives, the emergency services and police, and transport workers.

Below we summarise the key points for employers when dealing with rest breaks at work, including the recent exceptional contingency measure to relax drivers’ working hours in response to the coronavirus outbreak.

What does the Working Time Directive say?

The Working Time Directive is a piece of EU law that became UK law in the form of the Working Time Regulations 1998 (WTR).

The WTR give the employee the right to:

• A maximum of 48-hours on the working week, which includes overtime.
• A compulsory break of twenty minutes after six hours of work.
• A break of 11 hours in every 24.
• One day off a week or two days off a fortnight.

Opting out of the Working Time Regulations

It is possible for an employee to opt out of the first of these, relating to the 48 hour maximum working week, by signing an opt out agreement. This is voluntary and can be for a certain period of time, or indefinitely.

Even if the opt out provision is contained in an employee’s contract of employment, an employer must allow an employee to opt back in if they request to do so.

The employee should give notice that they want to opt back in, and the employer can specify the length of this notice, which can be between seven days and three months.

The WTR state that you must keep ‘adequate’ records of the hours worked by your employees, and payroll data is usually deemed to suffice.

It is not possible to opt out of any of the other obligations under the WTR, although there are exceptional cases where the entitlements to normal rest breaks do not apply. These cover employees in specific types of work who are instead entitled to compensatory rest, and are discussed separately below.

Other protections under the WTR

There are special provisions if you employ someone who is over school leaving age but under 18. In that case, you must allow them to take a break of 30 minutes if they work for 4 hours and thirty minutes or more, and they must have twelve hours rest per day and two days of rest per week.

Night workers also receive additional protection under the WTR. A night worker is someone who works for at least three hours during the night, and the night is defined as being between 11pm and 6am. In such a case, employees’ hours are capped at an average of eight hours for each 24 hour period, calculated according to a seventeen week reference period. Modifications to the deemed night time period can be made by collective agreement where you have a unionised workforce.

Night workers whose jobs involve special hazards, or heavy physical or mental strain, are only allowed to work eight hours in any 24 hour period, with no averaging. An employee is deemed to fall into this special category if a collective agreement identifies them as doing so, or a risk assessment made by the employer has identified a significant risk to the health or safety of its employees from this kind of work.

Finally, the entitlements to rest breaks also apply to those employed on zero hours contracts.

What is compensatory rest?

Compensatory rest is where an employee misses out on a rest break, so has to take a break at another time to make up for it.

Under Regulation 21 of the WTR these are known as ‘special cases’ and include the following categories of employees:

• those working in security;
• those working in industries which “involve the need for continuity of service or production” such as hospitals, residential institutions (like care homes and boarding schools), television and radio production and utility providers;
• those whose jobs involve “a foreseeable surge of activity”, for example, in tourism; or
• employees who miss out on a rest break due to “unusual and unforeseeable circumstances” that are “beyond the control” of their employer.

Length of compensatory rest

In these cases the employer is legally obliged to, wherever possible, allow the employee to take an equivalent period of compensatory rest, which should be a reasonable period of time after the missed break, and as long as the break would have been.

A recent case in the Court of Appeal clarified the nature of compensatory rest periods. In Network Rail Infrastructure Ltd v Crawford [2019], the employee worked as a signaller whose role it was to regulate railway traffic. Because of the continuity of service involved, Mr Crawford fell within the special cases in Regulation 21 of the WTR. Therefore, he was entitled to compensatory rest.

During his eight hour shift, Mr Crawford was able to take many short breaks of five minutes, which exceeded twenty minutes in total.

However, he was not able to take one interrupted break of twenty minutes. The Court of Appeal held that the period of compensatory rest did not need to be identical to the original entitlement, and found that the employer’s obligation to provide compensatory rest was satisfied by the frequency and total length of breaks enjoyed by the employee. This was seen as a relatively reassuring result for employers, but it should be noted that the court examined closely the working pattern in this case in order to reach its conclusion and will presumably take a similarly forensic approach in the future.

What if I cannot provide compensatory rest?

If the employer simply cannot provide the compensatory rest break, it must still take steps to safeguard the health and safety of an employee who is missing out on their breaks. Such steps should be meaningful and documented. For example, the employer can offer a free health assessment to the employee, to check that the employee’s working hours are not having a detrimental effect on their health. The employee is not obliged to accept this offer.

The employer could also assign them to lighter duties after the period of intense activity has subsided, or offer assistance in the form of a temporary extra member of the team.

As stated, the courts have shown that they will assess each case on its own merits, so it is important that adequate records are kept for each employee.

What are the rest break entitlements for 8 hour shifts or longer?

There is no extra entitlement to a rest break if your employee works a shift of longer than eight hours. However, you must bear in mind the employee’s right to a break of 11 hours in every 24.

There is a separate provision in the WTR for those employees engaged in a monotonous pattern of work “such as to put the health and safety of a worker…at risk”. This could be work on a production line, for example. In this case, Regulation 8 states that the employer must ensure that the employee is given “adequate rest breaks.” There is no detail on what these may be, but it is safe to assume that additional breaks are required to fulfil this obligation.

Health and Safety obligations

An employer owes a duty to the employee, under the Health and Safety at Work Act 1974, to take reasonable care of their health and safety at work, including providing adequate bathroom facilities. You will owe additional obligations to some employees and these are outlined below.

Pregnancy

Once an employee tells you that they are pregnant, you must carry out a risk assessment. This should address the risks posed to the employee by long working hours and standing or sitting for long periods without sufficient breaks. You should discuss with the employee what amendments might need to be made to their working pattern, for example, increasing their number of breaks.

Medical conditions

If an employee tells you that they have a medical condition that requires them to use the toilet more frequently, then you must allow this. If you deem it necessary, you can ask for medical evidence to support the employee’s position.

Whether or not an employee needs to visit the toilet more or less during the working day will depend on a myriad of factors, including age, menstruation and the menopause. Several protected characteristics could be engaged by you restricting toilet breaks amongst people in these groups. Therefore, you must take a cautious approach in order to avoid committing indirect discrimination.

Driver’s hours relaxed due to COVID-19

Existing drivers’ hours and working time rules are in force to protect road safety and the working conditions of drivers and to reduce the risk of drivers being involved in fatigue-related accidents.

A relaxation has been authorised for drivers under the EU drivers’ hours rules or the GB drivers’ hours rules and undertaking carriage of goods by road in all sectors, between 23 March and 21 April (continuation of the relaxation past 5 April is subject to review) in England, Scotland and Wales.

The Government states in its guidance that relaxation of these rules should only be considered where genuinely necessary and when other supply chain management interventions are unable to alleviate issues. Advice about emergency situations is if the journey is necessary to enable someone to:

• provide goods or services to protect public health, and/or
• meet their or others’ basic needs for day to day living, and/or
• provide medical treatment

and there is a risk of danger to the life or health of people if your journey is not carried out; then you should make use of the emergency exemption.

Rest breaks at work FAQs

[wp-faq-schema accordion=1]

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.