We recently had a client whose staff member had decided to work all the hours of the night and weekend.
She claimed that it was so busy that she had to work in the small hours of the morning, regularly sending emails at 2.35am, 4am, Saturday evenings at 10.45pm, and so on.
Our client wasn’t worried about this at the time.
After all she is a grown up and can decide when she wants to work.
Although the manager had told her a couple of times to stop working so late, it had not been backed up by any formal meetings or disciplinary action.
It was left to carry on, unchecked, until she went off with stress and claimed that her manager had “made” her break the working time regulations by not enforcing them.
As with all of H & S legislation, you, as the employer, are responsible for ensuring the rules are followed.
YOU are liable, not them.
Clearly the manager had not “made” her work reasonable hours, but he was considered to have approved them.
To make sure this doesn’t happen to anyone else, I thought I’d share a summary of the Working Time Regulations (WTR), that you, as the employer, are responsible for enforcing (For full details, please visit the HSE website.).
- During their working day, an adult worker, i.e. anyone aged 18 and over, is entitled to an uninterrupted break of 20 minutes if they work more than six hours. This break does not need to be paid. In addition, they are entitled to daily and weekly rest periods.
- Young workers are entitled to an uninterrupted in-work rest break of 30 minutes where they work 4.5 hours.
- If you have young workers, please give me a call on 01491 598 600 to check that they are getting all their rest breaks, as they are markedly different from those for grown-ups.
- Your employees shouldn’t be able to routinely take this break time at the start or end of their working day. That negates the point of the break.
- Even if you do offer paid in-work breaks, it doesn’t mean you can interrupt the employee’s break!
Daily rest breaks
In addition to in-work rest breaks, all adult workers have the right to a daily rest break between their working days.
The statutory minimum is eleven consecutive uninterrupted hours in every 24-hour period.
So, if an employee finishes working at 8.00pm on Monday, they should not start working again until at least 7.00am on the Tuesday.
Weekly rest breaks
An adult worker is entitled to a weekly rest period of 24 uninterrupted hours in each seven-day period.
You can, if you wish, average this time over a two-week period. This way, in each 14-day period a worker would be entitled to either: (1) two uninterrupted rest periods of 24 hours; or (2) one single uninterrupted rest period of 48 hours.
Employees can’t be forced to opt out of the WTR provisions on rest breaks and rest periods. They can do so voluntarily. An opt out in your employment contract is invalid and illegal. It has to be a separate document.
And you can’t fire someone for refusing to opt out – even if they are under 2 years’ service. It is an automatic unfair dismissal for asserting a statutory right. Which means that it is black and white in the eyes of the law, and you will lose a tribunal claim.
If you are not sure if your employees have opted out of the WTR legally or not, give me a call on 01491 598 600 or send me an email, so we can have a chat about how exposed your Company is.