40 hr contract (exclusive of breaks)

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What a fascinating, and odd debate, half the contributors siding with the employee, half the employer.

And all over-complicated for nothing.

Let’s clear up a few matters:

As Newchodge has stated several times, it is the law to have an [un]interrupted break at those hours, no ifs, no buts.

  • there is no legal reason for the employee to take an uninterrupted break (20 minutes or 30 minutes); yes, it makes a lot of sense for someone working 8 hours in the industry to have such a break, but in 4.5 years of working there, the employee has never asserted this right.

I work a 40 hr contract (exclusive of breaks) we are meant to hv 1/2 hr break which we never have. Now my boss is saying if we was to have our 1/2 hr break each day we would have to do 8.5 hrs each day, eg we normally do 3pm-11pm shifts, now he’s saying we’d have to do 2:30pm-11pm if we was to have a 1/2 hr break??


What exists is a right to an uninterrupted break, not a requirement to take this (although, sensibly, the employer may – as here – consider a break is appropriate for H&S reasons).

As the employee has never been denied this break, it’s wrong to suggest
Based on what the OP has written here the employer has broken the law and could conceivably be taken to an Employment Tribunal.
– there’s been no law broken, or rights denied. No exercise of their right to a break has been sought.


  • the employee has been taking breaks, but not apparently ever asserting his right to an uninterrupted break, instead accepting this may be interrupted, but taking pay for time not spent working

We don’t take official breaks ie clock out clock back in we just have a quick smoke then back inside or a quick scran then back to work as you just get interrupted half way through your meal, as checks come anytime


  • regarding

Can employees opt out of this?

There's no opt out as such. The only opt out is the 48 hour working week.

there isn’t an opt-out per se: it’s an opt-in, a right to take a break. And here the employee has chosen not to exercise that right for 4.5 years – preferring to take breaks on their employer’s time, and accepting that these may be interrupted.


Therefore, I don’t see that the employer


Any employer who is happy to ignore and break the law is a crap employer


is crap, or has broken any laws – they haven’t refused any requests for a break, but are now facilitating this. However, quite sensibly & reasonably the employer is requiring that staff take a break. And in order to ensure this is possible, the employer is scheduling the shifts to allow for this.


If, as Cyndy & others have asserted, the breaks should have been taken for the last four years, and the employer has been in breach of some legal requirement or other (which I dispute – the only thing the employer has done is fail to provide an extra 2.5 hour shift to ensure the contracted hours of 40 are available; perhaps the OP would prefer that to adding 30 minutes to their shifts?)


  • There would not be an employment tribunal because in the first two years you can get rid of an employee for any reason as long as it is not because they have a “protected characteristic”.
However, unless the OP has 2 years service they could not win a claim for unfair dismissal, unless they were dismissed for demanding their minimum 20 minute break. That dismissal, for asserting a statutory right, does not require 2 years' service. If the sequence of events went - I want my 20 minute break : you are dismissed because you don't fit in, the OP would win an unfair dismissal claim.


As Cyndy suggested, asserting a statutory right – to a break – would be grounds to succeed at a tribunal, even with less than two years.


  • We don’t appear to know the hours the employee works, only that he’s meant to be given 40 working hours a week, which he’s had for 4.5 years, and which he’ll have going forward.

Because the employer is breaking the law.

Contract law - the employee has a contract that they work from3 to 11. Those times cannot be changed except by agreement.


These aren’t the times – the shifts vary:
So now instead of doing a 2-10 , 3-11, 6-2 shifts like we’ve always been doing they now want us to do 2-10:30 6-2:30, 2:30 -11.

and the only flaw is that they are short by 2.5 hours a week.


The employer has noticed their mistake, and is correcting that – not exactly the behaviour of an unreasonable employer.



Karl Limpert
 
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kulture

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Thanks Karl, but it highlights a grey area. The employee has a right to an uninterrupted 20 minute break, and perhaps has not chosen to use the right, but perhaps has felt that they COULD NOT use this right as there was not sufficient staff to cover. It would be a brave employer who tried the defence of the employee chose to work non stop. Unless the employer could demonstrate that they had made provision to facilitate uninterrupted breaks they could be vulnerable in any tribunal.

Basically it is one thing to chose not to take a break when there is a clear opportunity and another to avoid taking a break where the working practice is no breaks.
 
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Thanks Karl, but it highlights a grey area. The employee has a right to an uninterrupted 20 minute break, and perhaps has not chosen to use the right, but perhaps has felt that they COULD NOT use this right as there was not sufficient staff to cover. It would be a brave employer who tried the defence of the employee chose to work non stop. Unless the employer could demonstrate that they had made provision to facilitate uninterrupted breaks they could be vulnerable in any tribunal.


Basically it is one thing to chose not to take a break when there is a clear opportunity and another to avoid taking a break where the working practice is no breaks.


A valid point, @kulture, but I think on the face of it, it’s six of one & half a dozen of the other: both parties at fault, one for not seeking to take their breaks, the other for not scheduling for these breaks.


However – and this is how I would argue the employer’s case to justify the changes – the employee has deliberately chosen not to take their legally-entitled breaks, as they are taking paid breaks that they’re not entitled to:

We don’t take official breaks ie clock out clock back in we just have a quick smoke then back inside or a quick scran then back to work as you just get interrupted half way through your meal, as checks come anytime.


Perhaps now the employer has become aware of this unauthorised practice, they’re making adjustments. Given this, I would think the employer has a slightly stronger position than the employee, should be able to make these changes.



p.s. If you amended my above post, Kulture (or to the mod that did), thanks! I was going to report a rogue missing quote, which made it difficult to read, but all fixed before I got there.



Karl Limpert
 
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Newchodge

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A valid point, @kulture, but I think on the face of it, it’s six of one & half a dozen of the other: both parties at fault, one for not seeking to take their breaks, the other for not scheduling for these breaks.
That assumes, and it is a huge assumption, that the employee knew they had a statutory right to the 20 minute break
 
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That assumes, and it is a huge assumption, that the employee knew they had a statutory right to the 20 minute break


I would disagree, Cyndy.


1. He knows he’s meant to have a 30 minute break


I work a 40 hr contract (exclusive of breaks) we are meant to hv 1/2 hr break which we never have.



2. It’s not for anyone else to explain to him what his legal rights are – if someone doesn’t exercise their rights, it’s not for the employer to tell them what their rights are*.



*There is an ECJ ruling that requires that staff should be made aware of their holiday rights, but that doesn’t obviously apply here, and even if it did, the employee knows he’s meant to take an unpaid break – and is being reminded of that again with the corrections to the shifts.



3. Despite having a contract requiring them to work 40 hours (exclusive of breaks), they are taking breaks – just not on their own time.

I work a 40 hr contract (exclusive of breaks) we are meant to hv 1/2 hr break which we never have.

We don’t take official breaks ie clock out clock back in we just have a quick smoke then back inside or a quick scran then back to work…




Now my boss is saying if we was to have our 1/2 hr break each day we would have to do 8.5 hrs each day, eg we normally do 3pm-11pm shifts, now he’s saying we’d have to do 2:30pm-11pm if we was to have a 1/2 hr break??



The boss is simply pointing out the obvious – making them aware of what the consequences are for taking breaks (and probably because they made a fuss, HR have found out, and corrected things): if they take a 30 minute break, it won’t count towards their worked hours.



Personally I would certainly feel comfortable defending the employer’s position here, if it ever found its way to a tribunal – the employer has done nothing wrong, just allowed workers to not take their breaks, and kept their shifts to the minimum hours to accommodate this. They’re now pointing out the obvious: you take a break, you’ll need to have a longer shift to allow for that time-off.



Karl Limpert
 
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kulture

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This particular case would be decided on the FACTS, unfortunately both Karl and Cindy have had to make assumptions which may not pan out. Cindy has repeatedly said that she would need to see the actual Employment Contract, I guess Karl would say likewise. Cindy would build on the existing working practice, building up to an implied contract. But it is not 100% certain what the existing detailed practice is. Karl would rely on the fact that they are allowed short breaks and they have not asked for an uninterrupted break, but for all we know they have and it has been denied due to lack of staff. The OP may not have been aware of the right and the Employer MAY have explicitly denied it. All the assumptions could change and the balance of liability could change.

I suspect that both Karl and Cindy would agree on the likelihood of a tribunal case winning or loosing if they both knew all the detailed facts.
 
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Lj2019

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It’s been 2 days & still no word of my contract, it can’t be that hard to get hold of it? Head of department has not said anything else to me since. Also I know one of my co workers was working this morning 6-2:30 & he didn’t take his break until 2:00 I said ‘that’s not wright you shouldn’t have to wait until end of your shift to take a break. But that’s what seems to be happening atm which Is not good.
 
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Clinton

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Cindy has repeatedly said that she would need to see the actual Employment Contract...
No, she hasn't. The only time she said she needed to see the contract was if she was advising the employer (and she said that in reply to your question on that point).

She reached her firm and unambiguous conclusion - that this employer is breaking the law and is a crap employer - without needing to see the contract. ;)

The rule seems to be this: when in doubt assume the employer is the bad guy.

Actually, there doesn't even need to be doubt. Always start with the assumption that the employer is the bad guy.
 
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That assumes, and it is a huge assumption, that the employee knew they had a statutory right to the 20 minute break


It will be interesting to meet you in the tribunal, Karl.


Among my favourite cases was Macmillan v Hair Division: Macmillan was fully entitled to a year’s maternity leave/pay, but she was a bit slow to simply advise the date she wanted the leave to start – such a simple exercise, and the only burden on the employee.


Along with the employer, I watched the dates pass… and pass… and pass… and then Macmillan gave notice of when she wanted to start her maternity leave. And I told her she was out of time to give notice – the legal requirement was to give notice by X weeks before the due date; we hadn’t bothered to remind her, and her notice was slightly late.


As it happens, she never got maternity leave as she sacked a month before she gave birth, but she would still have been entitled to maternity pay… if only she knew (there was no obligation to tell her) her statutory rights & obligations – as here, to just give notice that they’re taking time-off.


(G&T lunch please, should we ever meet in the tribunals Cyndy.)


Karl Limpert
 
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kulture

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No, she hasn't. The only time she said she needed to see the contract was if she was advising the employer (and she said that in reply to your question on that point).

She reached her firm and unambiguous conclusion - that this employer is breaking the law and is a crap employer - without needing to see the contract. ;)

The rule seems to be this: when in doubt assume the employer is the bad guy.

Actually, there doesn't even need to be doubt. Always start with the assumption that the employer is the bad guy.

You are just wrong. Cindy has in many posts said that the contract needs to be seen
......... Depending on the actual wording of the contract he may be contractually entitled to a paid 30 minute break between 3 and 11.

........

I am SO glad you have so much insight into what is in the OP's contract. Please let us have a copy or tell us exactly what it says........

You need to take your written contract to someone who can read it and advise you. Your union would have been the best option. Whatever your contract states, your employer is breaking the law by not ensuring that you are entitled to take an uninterrupted 20 minute break every shift that lasts more than 6 hours.

Selectively quoting bits of your contract does not help. You have just stated that your contract is exclusive of breaks, shift work, different shifts ie 6-2, 8-4, 2-10, 3-11 that is obviously not what your contract states.

He would probably lose. It is hard to be certain because none of us has seen the contract. .........

Thank you. I would need to know more than we have here, in particular I would need to see the sritten contract and understand the custom and practice. ........
 
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Also I know one of my co workers was working this morning 6-2:30 & he didn’t take his break until 2:00 I said ‘that’s not wright you shouldn’t have to wait until end of your shift to take a break. But that’s what seems to be happening atm which Is not good.

Not good? You've been doing the exact same thing for 4.5 years - breaks effectively been taken at the end of a shift - and now it's not good? But that's what you prefer, isn't it?


Karl Limpert
 
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Lj2019

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We’ve been doing that for 4.5 years? No we haven’t. We’ve been doing 6-2, go home at 2 not 2:30! Taking breaks at end of shift is not wright, beginning or end, it should be in between your shifts. That’s there little loophole as someone else stated on this thread.
 
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Clinton

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You are just wrong. Cindy has in many posts said that the contract needs to be seen
I'm not going to argue this silly point. I maintain what I said: Cyndy reached her firm and unambiguous conclusion - that this employer is breaking the law and is a crap employer - without needing (or asking) to see the contract.

The point I make is the tendency of some members, not just you and Cyndy, to have an anti-business attitude when it comes to employment related issues - the assumption that the employee is always right.

That is disappointing given this is a business forum and not a whine-about-your-boss workers union safe space for the common garden snowflake.
 
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We’ve been doing that for 4.5 years? No we haven’t. We’ve been doing 6-2, go home at 2 not 2:30! Taking breaks at end of shift is not wright, beginning or end, it should be in between your shifts. That’s there little loophole as someone else stated on this thread.

So your co-worker finished work at 2pm, then took their break of 30 minutes (which they took at work?), and then went home? What was preventing them leaving at 2pm, given they were on their own time then?


The only loophole I've seen in this thread is where you state you take smoking & meal breaks on the employer's time (not clocking-off), despite breaks being unpaid!

What have I missed? What loophole has the employer got?

But as you now insist (quite rightly) that your breaks should be taken during your shift, your employer is adjusting your times of attendance to accommodate this. Or do you want the best of all worlds, arguing for some little loophole that doesn't exist?


Karl Limpert
 
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Clinton

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Or do you want the best of all worlds, arguing for some little loophole that doesn't exist?
It's like I stated way back - he's trying it on.

He discovered this gotcha about a 20 minute break and then felt hard done by because he's not been taking/getting this 20 minute break.

It doesn't matter that the contract requires him to work 40 hours and that he understood this right from the start.

It doesn't matter that his employer allows him to take cigarette breaks and meal breaks (which probably total more than 20 minutes in any shift).

He figures he's found a loophole which he can use to better his terms.

The sad thing is that he doesn't realise he could actually end up with worse terms (like the cancellation of cigarette breaks and meal breaks).

I don't envy employers having to put up with nonsense like this (especially when they are trying to do the decent and legal thing)!
 
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Lj2019

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As Kulture said on page 2.The break cannot be taken at the beginning or end (so no fancy loophole saying that your break is when you finish work so youcan "go home early") also we have been told we cant just go home at 2 when our beak starts.
 
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As Kulture said on page 2.The break cannot be taken at the beginning or end (so no fancy loophole saying that your break is when you finish work so youcan "go home early") also we have been told we cant just go home at 2 when our beak starts.

You've been told that you can't do what you care to in your own time? Are you obliged to stay at the workplace, as some form of decoration, or can you leave to visit a coffee shop or go anywhere else? What purpose is served by you returning, if you don't have any further work? And what sanction would apply to you if you, in your own free, unpaid time, went home?

And what about those little loopholes, where you get to smoke & eat without signing out? Are those reasonable, or an abuse of the system?


If you simply want to be told what you want to hear, speak to ACAS - they feed employees a lot of bull. But if you want to know whether you could ever enforce anything, just like the employer can't force you to stay on the premises when you are not working, I believe you have no hope. Given there is new management in place though, you may want to be careful with your smoking breaks...


Edit to add:

I do wish you were working for me and within your first two years. There'd be an easy solution to your "problem" (and, no, it doesn't involve pointing you to a union!)

Personally, I don't see any burden of two years - this sounds like an employee that could easily have their problem resolved, regardless of length of service.


Karl Limpert
 
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