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Can a worker prefer a series of breaks over a day instead of the statutory 20 minute rest break?

Crawford Vs Network Rail looked again at whether the 20 minute break in 6 hours can be discontinuous or whether it needs to be one break – we expect this case has most significance to employers smokers who prefer a series of 5 minute breaks over a continuous break.

Cawford Vs Network Rail looked again at whether the 20 minute break in 6 hours can be discontinuous or whether it needs to be one break – we expect this case has most significance to employers smokers who prefer a series of 5 minute breaks over a continuous break.

Working Time regulations require 20 minutes uninterrupted rest break in 6 hours worked, or 30 minutes in 4.5 hours if the worker is aged 16 – 18, or 1 hour in every 4 hours if the worker is aged 13 – 15. There are separate rules around daily and weekly rest.

It is often the case that smokers will want to have a series a short breaks instead of the one continuous break of 20 minutes (or longer as in many cases employers will allow longer for lunch etc.) so where exactly do employers stand legally on the issue?

The Crawford case confirmed what we knew already that while there are very limited exceptions the regulations are clear – workers must have uninterrupted rest breaks of 20 minutes, taken away from the work station, and during which no work is done. 4 X 5 minute fag breaks won’t cut it then.

Now let’s assume a typical context of a one hour lunch break. Can the worker instead take 20 minutes at lunch and have 8 X 5 minute smoke breaks? Well, yes, in theory and provided the employer is happy with this arrangement – the main thing is the 20 minute uninterrupted rest break has been honoured. What if the employer’s not happy? I’ll touch on this briefly below.

In another context though, when the employer allows just half an hour, is the worker instead ok to take 6 X 5 minute breaks to smoke? In the context of the law, no, he is not.

Let’s inject a large dose of pragmatism then, using the second example above. Has the worker in these circumstances (6 short breaks) suffered any financial loss? No. Given that it’s their preference, are they likely to object or bring a claim? No, not in isolation, but there is always the chance that ‘failure to provide statutory daily rest’ might appear in an unrelated claim (but then given no financial loss it’s unlikely to result in any additional award.) So pragmatically, why worry? Indeed you might not, save that if HSE do decide to audit, an employer is likely to be warned to comply and a penalty notice may be theoretically possible.

Finally in this article, does an employer have to tolerate smokers wondering off for a smoke whenever it suits them? No, they don’t. However, if an employer has been tolerating smoking breaks for a period of time, they may well have inadvertently allowed a contractual entitlement to occur and so a careful process must be followed to change that entitlement – your myHRdept advisor can help in that case. An employer said to me recently that she could not ‘discriminate against smokers.’ There are 9 protected characteristics against which discrimination is unlawful. Smoking is not one of them and so banning smoke breaks (after fair consultation) will not constitute ‘discrimination.’

Former smoker Bill Larke runs myHRdept, an HR outsourcing Company in Berkshire specialising in supporting businesses without their own internal HR. The Company provides all the services (and more) of an employment law solicitor but without the hourly charges.

If you're thinking of outsourcing your HR why not contact myhrdept.co.uk. With HR Outsource packages from only £140 per month (and from as little as £80 per month for start-ups) and support for HR Projects available for one-off issues, we believe we offer the best combination of quality and price available in the UK. Call us on 01628 820515 to discuss your requirements contact us and we’ll call you back.

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