Q.I work with children anything up to nine and half hours a day. I get given one half hour break unpaid whilst the children are sleeping. I know the children still need looking after. But if my employer does not pay me for my breaks, can they prevent me from leaving the premises on my break?
(Miss J. Walley, 23 September 2021)
A.The Working Time Regulations say that if you are over 18:-
You are can take a 20 minute rest break if your daily working time is more than 6 hours. Under normal circumstances, you are entitled to take that rest break wherever you want to take it. This includes leaving the premises.
The Working Time Regulations say that if you are under 18:-
You’re entitled to a 30 minute break on a shift that is at least 4 and a half hours long. You can also take that break away from the premises.
However, this employment law does not always mean that you can leave your workplace during lunch or another break. There are some exceptions.
Situations Where You Can’t Leave Work For Your Break
In this instance, complications arise because there are a number of exceptions to the regulations when it comes to leaving the premises.
There are exceptions to the Working Time Regulations. One of these is that rules about rest breaks apply differently if “there’s an emergency or risk of an accident”. That means your employer could argue that although the children are asleep, there needs to be staff on the premises in case of emergency or accident. There are strict rules on child to staff ratios within childcare businesses. Your employer will need to ensure they comply with these.
As you’re not being paid for your lunch break, you could counter by saying that if you’re unable to leave the premises then you’re still on ‘work time’. Even if you get the 20 minute break, you have the right to ask to be paid for it.
Asking for Break Cover
There are two solutions you could discuss with your workplace.
1. You could ask that the employer provides an additional staff member to cover for you whilst you go on your unpaid lunch break. That will mean you can leave the premises if you so choose.
2. You have the right to ask to be paid for the time you are keeping an eye on the children at lunchtime. This would be in spite of the fact that you are having your lunch at the same time.
If your employer does not agree to either of these solutions, then your next step would be to seek advice. Depending on the outcome, this 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.
You should note that your employer is only obliged to give you a 20 minute break not the 30 minutes you’re currently getting. The exception to this is if you are under 18. In this scenario they must give you 30 minutes. You also say 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. It may also help you to review and understand your employment contract before starting your discussion with your employer.
- We look more closely at break entitlements on an 8 hour shift in our comprehensive guide. In it you’ll learn what the minimum statutory break length is, and what the rules around breaks and rest periods are.
- Anyone regularly working longer shifts might value a look at our guide to how many breaks you are entitled to in a 12 hour shift.
- Our guide on lunch break entitlements has more on what you can do during lunch times.