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21 Nov 2014
So, you spent your lunch break rushing around the shops for that last minute Christmas present, tearing back to your desk in the nick of time to avoid a reprimand. Within minutes, the gurgle of the water cooler reminds you; no loo break since you started work and the pressure is mounting.
Most of us would simply get up from our desks, take a few minutes and come back, feeling better for it and ready for the afternoon. What if, however, that single trip would get your pay docked? What would you do then- would you sit there, cross-legged, trying not to inhale too deeply; concentration on the job waning with each second or would you try and sneak to the toilet like some bloated commando, hoping to avoid your supervisors beady eye? Perhaps you think the deduction more reasonable than the very real threat of a dry cleaning bill?
This scenario is apparently the reality for some employees. On the face of it, it seems incredibly selfish but flip it for a second. What if your sales team spends half its time applying make-up, smoking cigarettes, or sat in a cubicle playing Candy Crush or watching videos of cats on You Tube; then you might want to limit the hourly exodus from the working floor?
Under 12(1) of the Working Time Regulations an employee is entitled to a 20 minute break if they work more than 6 hours a day, but no breaks if they work less. An employer may therefore argue that this period should be utilised for comfort breaks and that additional times are not permitted or required.
In the absence of a specific clause in an employment contract, to deduct pay for toilet breaks is likely to be deemed an unlawful deduction. However, should such a specific clause exist then such deductions may well be permissible. As with any such contractual term, the employer must balance up the benefits to them in potentially discouraging time wasting against the health, safety and wellbeing of their employees.
Of course, employers must not forget to pay particular attention to any employee who may have a disability or be pregnant for instance, who may require reasonable adjustments made by law.
We would advise a pragmatic approach to toilet break policies; tailored to reflect the nature of your business. If you require guidance on policies, wage deductions or disciplinary proceedings, whatever the reason, you should contact us on 01633 244233 and we will be more than happy to assist.
For further information please contact David Lewis on 01633 244233 or email firstname.lastname@example.org
Harding Evans is a trading name of Harding Evans LLP, a limited liability partnership, registered in England & Wales (registered number: OC311802), authorised and regulated by the Solicitors Regulation Authority (SRA number: 419663).