Can an employer attach conditions to unpaid lunch break?

On-the-coast

Give & take & compromise…
is she really only 4 minutes away? Would she be prepared to come back (in 4-5 minutes) in an emergency?
do other employees leave premises for a smoke break  or to post a letter? How are they contacted in an urgent situation?

Are they subject to same restrictions?
is she happy to be assertive…

Undervalued

pimbo said:

Undervalued said:

Does this "unpaid hour" take her below the national minimum wage for the total time she is at the theatre?

No it doesn't. But wouldn't it still be a breach of her terms and conditions if her employer refused to allow her to have this time off? And the "no less than 20 minutes" she's entitled to under the working time regs needs to be uninterrupted. If the employer insists that she continues to monitor her work radio in case of an emergency whilst she's on this break then surely this is still classed as working time so she isn't being given the break she's legally entitled to?

In a true "emergency" situation would she really sit with her arms folded for the "legally entitled" uninterrupted 20 mins?

As another poster has said, there need to be some give and take. However, given the hammering most performing arts venues have taken during the Covid situation I wonder if this is really a good moment to get to assertive.

pimbo

If there was a risk of injury then she’d certainly always assist. I raised her better than that. But I also raised her to stand up for herself and not allow herself to be exploited. Her employer is very wealthy and the business is doing very well. The biggest problem they have is finding staff. They could pay her the extra hour but they simply don’t want to. She’s very well qualified and won’t struggle to find alternative employment so she’s not worried about rocking the boat. I just want to know if they’re legally able to do what they’re doing.

Grumpy_chap

pimbo said:

They could pay her the extra hour but they simply don’t want to. 

It may not be as simple as whether they can financially support paying her the extra hour.
If they did so, would the employer be at risk of contravening the working time regulations by not giving a lunch break? 
Quite different to give no lunch break to giving a lunch break during which there might be an occasion requiring response to an emergency event and a late-lunch can follow.

Brie

Rest breaks at work: Disputes - GOV.UK (www.gov.uk)

The directives state that a rest break can be unpaid but if so the employee can't be asked to work.  And that should include being able to put her feet up, headphones on, listening to banging music with her work phone turned off.  

It also says that she can take it away from where she works but whether that means she can leave the building is a bit of a grey area.  

Now obviously if she's leaving the building and the fire alarm goes off I really doubt she would just say "not my monkey" and head home.  None of us would.  

Employers can say when employees take rest breaks during work time as long as:

• the break is taken in one go somewhere in the middle of the day (not at the beginning or end)
• workers are allowed to spend it away from their desk or workstation (ie away from where they actually work)

It doesn’t count as a rest break if an employer says an employee should go back to work before their break is finished.

On the last page there's a link to ACAs for those who need advice about breaks.  That might be useful.

MalMonroe

Hi, this is what acas says -

https://www.acas.org.uk/rest-breaks

And also this -

https://www.acas.org.uk/rest-breaks/making-up-for-missed-rest-breaks

But if I were your daughter I'd definitely contact acas :  Helpline 0300 123 1100

pimbo

Grumpy_chap said:

pimbo said:

They could pay her the extra hour but they simply don’t want to. 

It may not be as simple as whether they can financially support paying her the extra hour.
If they did so, would the employer be at risk of contravening the working time regulations by not giving a lunch break? 
Quite different to give no lunch break to giving a lunch break during which there might be an occasion requiring response to an emergency event and a late-lunch can follow.

That might be a possible reason for not paying her, but it’s not a reason for insisting that she remain on site when she’s not being paid.

lisyloo

pimbo said:

If there was a risk of injury then she’d certainly always assist. I raised her better than that. But I also raised her to stand up for herself and not allow herself to be exploited. Her employer is very wealthy and the business is doing very well. The biggest problem they have is finding staff. They could pay her the extra hour but they simply don’t want to. She’s very well qualified and won’t struggle to find alternative employment so she’s not worried about rocking the boat. I just want to know if they’re legally able to do what they’re doing.

Personally I don’t think it’s reasonable.
if I wanted to know the legal situation I’d call my legal insurance. Does she have any on her household insurance. Calls to a solicitor are usually free if she has that included or as an add-on.
the union ought to be able to advise on the legal position also.

what she has to decide is whether this is a resignation issue given the pay, career opportunities available and how much she enjoys the job.

if she decides it’s not worth resigning over she could try to compromise, for example explain she’s only 4 minutes away and will keep the radio on.
personally I wouldn’t be happy if they said no if my skills were in demand, but it’s personal thing as to whether it’s a resigning issue.

custardy

SiliconChip said:

pimbo said:

Grumpy_chap said:

pimbo said:

My daughter works as a technician in a theatre. She’s worked there for just over 2 years. She’s been told that she can’t leave the site during her lunch break in case of technical emergencies. She said fine but asked for the lunch hour to be paid as overtime as her contract says it’s unpaid.

They’ve said no because apparently the working time regulations allow for no less than a 20 minute rest break for a shift that lasts longer than 6 hours and doesn’t require the employer to allow the worker to leave site.

We are asking what about the other 40 minutes of her lunch break and if she needs to remain on site but they’re being really uncommunicative. They’ve basically attached conditions to a period of her shift that is unpaid. Can they do that?

This is an odd scenario - did she ask to leave site or did she just do so and then get told she cannot?

Do other staff leave site during lunch, or is that a normal practice for everyone to remain on site?  In some workplaces, if there is a canteen etc, remaining on site might be seen as positive for team cohesion.

The part referencing the working time regulations as stated is oddly phrased by the employer "working time regulations allow for no less than a 20 minute rest break for a shift that lasts longer than 6 hours and doesn’t require the employer to allow the worker to leave site"
I imagine the working time regulations are silent on where the employee has to be for lunch, so the comment "doesn't require the employer to allow to leave site" could be turned around to "doesn't require the employee to remain on site".
The employer's phrasing sounds more like a school than a workplace.

In the wider remit, I can see scenarios where an employer could impose restrictions on what can be done in a lunchbreak - the obvious examples would be where the work requires wearing branded workwear and not doing something that the business would consider brings them into disrepute.

As for the technical emergencies, what is the impact to the theatre if these are not resolved swiftly during the lunchbreak?

She said that's fine but asked to be paid for the hour that she needs to remain in her workplace. They've refused. 

I can see their point: she's generally not working while she's on her lunch break so as her contract says it's unpaid then unpaid it is. What I might suggest is that she proposes a compromise to them, that if she does get asked to do anything then that time worked is paid as overtime (she could also ask for a small standby payment for staying on site, but that might be pushing it).

I would say that's no compromise. If she is being asked to work on her unpaid lunch.
Then payment  is a basic expectation. I would expect the remaining time of the break too.
This seems like an employer who wants on call staff for free

pimbo

I suck at interpreting legal language. Can anyone tell me if section 31 of the WTR (the right not to suffer a detriment) protects an employee if they take their statutory rest break even if the employer says they cannot?

Would this be it perhaps?

45A.—(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker—

(a)refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the [S.I. 1998/1833] Working Time Regulations 1998,

https://www.legislation.gov.uk/uksi/1998/1833/regulation/31/made