Not allowed to leave building during work break at night

BetterThanThou

I've recently started a new job working overnights, and during unpaid break time, it's policy that no-one can leave the building, not even for a few minutes to smoke, for a few weeks we were told that would be changed when the security guard was off holidays, when he came back, we were told there's no security guard working nights.

I can't find any information on this topic, so I'm not sure if it's even legal, the job is a simple stockroom job, and definitely doesn't require people close-by in case they're needed. The manager's logic for this policy is "Junkies will storm the shop if we open the shutters", but they have no problem opening the shutters to move things to another shop.

So, does anyone know if this practice is legal or not? I've been finding it hard to believe I can be deprived of a smoke break during lunch.

AndrewJRenko

Do you have access to proper fire exits? If the doors behind the shutters are marked with the green running man emergency exit sign, then the shutters should not be down, unless they are automatically linked to the fire alarm.

Claw Hammer

Where would you be going in the middle of the night?

ohnonotgmail

Claw Hammer wrote: »

Where would you be going in the middle of the night?

as per the op

not even for a few minutes to smoke,

Claw Hammer

The op didn't say he wanted to leave for a smoke. He just said leaving for a smoke is not allowed. He didn't say whether or not there was any facility to smoke without leaving the building. Smoking isn't healthy anyway and it is a ridiculous reason for wanting to leave a building in the middle of the night.

ohnonotgmail

Claw Hammer wrote: »

The op didn't say he wanted to leave for a smoke. He just said leaving for a smoke is not allowed. He didn't say whether or not there was any facility to smoke without leaving the building. Smoking isn't healthy anyway and it is a ridiculous reason for wanting to leave a building in the middle of the night.

The healthiness or not of smoking is irrelevant. If you want to smoke you have to leave the building. Indoor smoking rooms are a thing of the past.

drunkmonkey

There's obviously a security risk of people leaving doors open etc.

If you don't like the policy leave or get some patches or champix, It's not illegal from them to have a security policy.

emo72

I'd like to at least have the option of getting a bit of fresh air, or just a minute to myself to clear my mind. Otherwise it's like jail.

seamus

Your employer is under no obligation to facilitate smoking breaks. So I wouldn't bother chasing that up.

There is no requirement, specifically, that you must be able to leave the premises during your break. Some large manufacturing workplaces, for example, can take 20 minutes-plus to get from your workstation to the front door, with sign-in/out processes, decontamination, changing, etc etc. Which means that it is not practically possible for an employee to leave the building within the time given for a rest break.

And this is OK, because the law doesn't state that an employee must be able to leave the building during their break.

So on the face of it, your employer is entitled to say that leaving the building during the night shift is not permitted. There are two possible grounds for this - building security, as well as Health & Safety.

In the long-term if an employee was to be fired for leaving the building and the employee took an unfair dismissals case, then a court would make a decision based on whether the rule was necessary and whether it was applied fairly.

In this case, there's no security guard working nights, which means that constantly coming and going for smokes puts the building at risk. So it seems like a fair rule.

Claw Hammer

ohnonotgmail wrote: »

The healthiness or not of smoking is irrelevant. If you want to smoke you have to leave the building. Indoor smoking rooms are a thing of the past.

The o/p hasn't even said he smokes nor whether or not there is an open smoking area with in the premises such as on a balcony or roof garden. The healthiness of smoking is perfectly relevant. If someone wants to leave the building for a good reason there would be a greater obligation on the employer to facilitate egress.

zl1whqvjs75cdy

GarIT wrote: »

If they give you any instruction of what you should or shouldn't do you're not on a break. Would you let a stranger on the street tell you where you can or can't go on your break? I assume not, that should be the level of input your workplace has on your break.

It's nobody's business what he does on his break.

Well that's total bollox. Can I beat sing along to crap pop songs on my break so? If they tell me to stop does it stop being a break?

Claw Hammer

GarIT wrote: »

If they give you any instruction of what you should or shouldn't do you're not on a break. Would you let a stranger on the street tell you where you can or can't go on your break? I assume not, that should be the level of input your workplace has on your break.

It's nobody's business what he does on his break.

The employer is obliged to give the o/p a break and can't instruct him to work when on the break. The employer is perfectly entitled to decide what a person cannot do while on their break.

Claw Hammer

GarIT wrote: »

I disagree, I'm not sure of the legal stance of it but I'd be quitting on the first day. Or maybe I wouldn't quit, I'd go about my usual business as usual and if they fire me so be it.

If you are not sure about the legal stance of it you should avoid comment in a legal discussion. the fact that you wouldn't work in a particular job under particular conditions is irrelevant.

seamus

GarIT wrote: »

I disagree, I'm not sure of the legal stance of it but I'd be quitting on the first day. Or maybe I wouldn't quit, I'd go about my usual business as usual and if they fire me so be it.

Rest breaks are still part of the "working day", so the employer can indeed make reasonable declarations about what an employee can and cannot do on those breaks.

For example, and employer could make it a rule that employees are not permitted to be in a pub during their breaks (whether they're drinking or not).

A more common one is that employers require staff to remain on site during breaks in the event that they are required in an emergency.

As stifling as it may sound to those of us accustomed to more relaxed environments, more rigid working environments (such as shift work) often require more rigid rules and procedures to ensure the business functions properly.

seamus

GarIT wrote: »

Can you show a law where an employer can tell you where you can go on your break?

Can you show a law which prevents an employer from telling you where you can go on your break?

In general, if it's not illegal, then it's legal. So the employer doesn't need a law to make it legal, unless there is some other law which makes it illegal.

Claw Hammer

GarIT wrote: »

Can you show a law where an employer can tell you where you can go on your break?

The absence of any law would suggest that you don't have to listen to them, just like you wouldn't have to listen to the instructions of any other member of the public.

Your employer is entitled to regulate your employment. they are the occupier of the premises on which you work and have a contractual relationship with you. You have a contractual relationship with the publican who serves you drink and he is entitled to give you reasonable instructions pursuant to that. The working time directive regulates breaks. A truck driver is entitled to and must take breaks. the employer is also entitled to say that he must remain in the vicinity of the truck during such breaks. You are using your own ignorance of the law to assume there is no law.

seamus

GarIT wrote: »

If you're not being paid for being on call that has to be illegal.

If someone is available in case of an emergency they are currently working. If you're on a break you're not available.

Nope. That's not how it works. On a rest break you are not working. "Not working" does not mean "not available". The company can cancel your break in an emergency and then allow you to take it again at a later time in the day.

GarIT wrote: »

While you are correct ignoring them is also legal as there is a lack of a law. While I'm on a break I am not employed by the company they have nothing to do with me and I them.

Sure. You can ignore them, you cannot be detained. But they can discipline you for not following the rules.

In effect, your employment contract is a voluntary agreement to follow the rules and processes as laid down by the company, provided that those rules and processes themselves are not illegal.

You are free to ignore these rules (since you volunteered to follow them), but the company case consider it a breach of contract and take measures accordingly.

Claw Hammer

GarIT wrote: »

While you are correct ignoring them is also legal as there is a lack of a law. While I'm on a break I am not employed by the company they have nothing to do with me and I them.

When you are on a break you are still employed. you are resting. The contract of employment will regulate what happens when you are off duty. For example it is a condition of employment in some hotels that employees cannot visit the hotels as customers when off duty.

Pelvis

Claw Hammer wrote: »

The employer is obliged to give the o/p a break and can't instruct him to work when on the break. The employer is perfectly entitled to decide what a person cannot do while on their break.

To what degree? Can an employer say you're not allowed go to the toilet on your break?

seamus

Pelvis wrote: »

To what degree? Can an employer say you're not allowed go to the toilet on your break?

If they make alternative provision for toilet breaks and ultimately can cite a reasonable basis for such a rule, then yes.

ELM327

GarIT wrote: »

Can you show a law where an employer can tell you where you can go on your break?

The absence of any law would suggest that you don't have to listen to them, just like you wouldn't have to listen to the instructions of any other member of the public.

That's not how the law works.
As well you know.

runawaybishop

ELM327 wrote: »

That's not how the law works.
As well you know.

GarIT is most likely correct. I cannot find an instance of this being challenged in Ireland but in the UK and the US it has been ruled that employees on an unpaid break cannot be dictated to with regards to leaving the premises. If they are expected to be available in an emergency they should be paid

Claw Hammer

runawaybishop wrote: »

GarIT is most likely correct. I cannot find an instance of this being challenged in Ireland but in the UK and the US it has been ruled that employees on an unpaid break cannot be dictated to with regards to leaving the premises. If they are expected to be available in an emergency they should be paid

There is no question of the break not being paid. There is also no question of being available in the event of an emergency. The reason they are asked to remain on the premises is for security reasons.

ohnonotgmail

Claw Hammer wrote: »

There is no question of the break not being paid. There is also no question of being available in the event of an emergency. The reason they are asked to remain on the premises is for security reasons.

you really need to read the OP. If you are expected to be available to cover an emergency you have to be paid.

and during unpaid break time, it's policy that no-one can leave the building

runawaybishop

Claw Hammer wrote: »

There is no question of the break not being paid. There is also no question of being available in the event of an emergency. The reason they are asked to remain on the premises is for security reasons.

Security is the employers conern, not the employees. They cannot restrict the staff on an unpaid break from leaving the premises. If they have inadequate security they should address that

CPTM

Was this raised as a condition before you joined the company OP? Normally if a manager feels strongly about something which isn't common place in the job market (And I believe this condition is not common place), they would have flagged it as part of the hiring process. It would have been in both your interest to do so.

seamus

runawaybishop wrote: »

They cannot restrict the staff on a break from leaving the premises.

You're going to have to provide citations for this.

Because this is relatively commonplace in certain industries and activities.

runawaybishop

seamus wrote: »

You're going to have to provide citations for this.

Because this is relatively commonplace in certain industries and activities.

Like I already said, can't find where it has been challenged in Ireland but the UK, which we share a lot in common, and the US have found that employees on unpaid breaks cannot be restricted from leaving the premises.

Paid breaks, sure. Not unpaid.

Under His Eye

What if the building catches fire? Is there a mechanism to leave?

seamus

runawaybishop wrote: »

Like I already said, can't find where it has been challenged in Ireland but the UK, which we share a lot in common, and the US have found that employees on unpaid breaks cannot be restricted from leaving the premises.

So, provide some citations so the rest of us can learn.

I've searched on this and found nothing general which says this is the case in the UK or US.

Bigmac1euro

Have to agree with the OP here. He should be allowed leave the premises if he wants during an unpaid break.

To say that you cannot leave the premises incase required for an emergency and then not be paid is absolutely ridiculous.
I think some people here are making it up as they go tbh.
If I’m on call at the weekend or I am even required to switch my phone on. My company gets charged for that by the hour.

seamus

steo_magra wrote: »

If I’m on call at the weekend or I am even required to switch my phone on. My company gets charged for that by the hour.

Being available outside of the work day, is an entirely separate matter.

Bigmac1euro

seamus wrote: »

Being available outside of the work day, is an entirely separate matter.

Being unavailable on your unpaid lunch break is not that much different.

ohnonotgmail

seamus wrote: »

Being available outside of the work day, is an entirely separate matter.

How is that different to being available during the work day? I know there are situations where it is not possible for an employee to leave during a break but they are exceptions not the default. Unless there is a reasonable reason to stop an employee leaving then they can leave.

nim1bdeh38l2cw

seamus wrote: »

You're going to have to provide citations for this.

Because this is relatively commonplace in certain industries and activities.

Could you provide citations for this, I've never come across this "relatively commonplace" policy of yours.

runawaybishop

seamus wrote: »

So, provide some citations so the rest of us can learn.

I've searched on this and found nothing general which says this is the case in the UK or US.

Sorry, it's tedious on mobile so I was hoping you'd find them

https://hrwatchdog.calchamber.com/2017/12/employees-free-leave-premises-rest-breaks/

http://www.workplacesafetyadvice.co.uk/can-i-leave-premises-lunch-break.html

seamus

steo_magra wrote: »

Being unavailable on your unpaid lunch break is not that much different.

It is though, because it's part of your working day.

You are "in work", but you're taking a break. The Working Time Act specifically states that your breaks cannot be taken at the end of the working day.

This creates a clear and implicit delineation between rest periods inside and outside of work, such that any break period is part of the working day.

Which means that your employer can apply different rules for breaks inside the working day.

Bigmac1euro

seamus wrote: »

It is though, because it's part of your working day.

Which means that your employer can apply different rules for breaks inside the working day.

“Unpaid” being the keyword here.

See the above links. Which have been posted to prove your theory wrong.

UK & US

More than likely the same for Ireland.

seamus

runawaybishop wrote: »

Sorry, it's tedious on mobile so I was hoping you'd find them

https://hrwatchdog.calchamber.com/2017/12/employees-free-leave-premises-rest-breaks/

http://www.workplacesafetyadvice.co.uk/can-i-leave-premises-lunch-break.html

I did actually find the second one, but it a slightly separate issue in that the question posed is whether the employee can be "working" on their break time. I do see the relevance, but it's not exactly the same thing.

I appreciate the US link, but I'm not sure a specific ruling on a point of Californian law is all that relevant to us. A broader, US-wide ruling may be.

I'll accept there's probably a certain amount of piss-taking being done in relation to being "on call" during breaks.

But if we take a look at the OWTA:

“working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work

“rest period” means any time that is not working time;

Thus, if you are at work, or at your employer's disposal, but not performing the duties or activities of your work, then that time counts as a rest period. Being available for work, doesn't count as "working time" and therefore on the face of it, taking a break but being available to be called in an emergency, does not count as working time. And an employer is entitled to require you to be available at these times.

The OWTA makes no distinction between paid or unpaid rest periods, except to set out that mandatory rest periods do not have to be paid. Outside of that it's kind of irrelevant.

It does get more complicated than this, between collective union agreements, industry-specific rules, exemptions, and whatnot. But since the OP hasn't said what industry he's in, we can only go with what's in the main act.

seamus

steo_magra wrote: »

Source ?

For what? The OWTA?

http://www.irishstatutebook.ie/eli/1997/act/20/enacted/en/print

ohnonotgmail

seamus wrote: »

I did actually find the second one, but it a slightly separate issue in that the question posed is whether the employee can be "working" on their break time. I do see the relevance, but it's not exactly the same thing.

I appreciate the US link, but I'm not sure a specific ruling on a point of Californian law is all that relevant to us. A broader, US-wide ruling may be.

I'll accept there's probably a certain amount of piss-taking being done in relation to being "on call" during breaks.

But if we take a look at the OWTA:



Thus, if you are at work, or at your employer's disposal, but not performing the duties or activities of your work, then that time counts as a rest period. Being available for work, doesn't count as "working time" and therefore on the face of it, taking a break but being available to be called in an emergency, does not count as working time. And an employer is entitled to require you to be available at these times.

The OWTA makes no distinction between paid or unpaid rest periods, except to set out that mandatory rest periods do not have to be paid. Outside of that it's kind of irrelevant.

It does get more complicated than this, between collective union agreements, industry-specific rules, exemptions, and whatnot. But since the OP hasn't said what industry he's in, we can only go with what's in the main act.

(a) at his or her place of work or at his or her employer's disposal, and

If you are on a break, paid or not, how are you at your employers disposal?

ELM327

ohnonotgmail wrote: »

If you are on a break, paid or not, how are you at your employers disposal?

The little "or" in the post you quoted is not just for decoration!

“working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer's disposal, and

seamus

ohnonotgmail wrote: »

If you are on a break, paid or not, how are you at your employers disposal?

How are you not?

The definition of "rest period" does not exclude one from being at their employer's disposal.

Riskymove

ohnonotgmail wrote: »

If you are on a break, paid or not, how are you at your employers disposal?

you are correct

“rest period” means any time that is not working time

If you are on a rest period then you are not in working time and are not at the disposal of your employer

I think people are misconstruing "or at your employer's disposal"

this is to cover people who may not work in a particular location

it does not mean being on a break but being available to be called to work

ohnonotgmail

seamus wrote: »

How are you not?

The definition of "rest period" does not exclude one from being at their employer's disposal.

I would have thought it does exactly that. If it is not working time then what i do has nothing to with my employer.

Riskymove

seamus wrote: »

How are you not?

The definition of "rest period" does not exclude one from being at their employer's disposal.

yes...it does

if you are at the disposal of your employer then its working time and you are not in a rest period

seamus

Riskymove wrote: »

yes...it does

if you are at the disposal of your employer then its working time and you are not in a rest period

No, only if you are working.

If you are at your employer's disposal, but not working, then it is not "working time". It's pretty clear, right there. Both conditions have to be satisfied:

1. At your workplace, or available for work

AND

2. Doing work

If one of these conditions is not satisfied, then it is not "working time".

For example, if someone goes home and does some work off their own bat, that is not working time.

Likewise being at your workplace, or being available for work, does not constitute "working time" unless you are actually doing your job. This means that if you are sitting eating your lunch, or watching TV at home with the phone beside you and have agreed to be available, you are not "working".

Nevertheless, to get back to the OP, there is nothing which explicitly prevents an employer from stating that an employee must stay on the premises during breaks.

This is not the same as dictating what an employee can do outside of work, since rest periods inside the working day are implicitly different to rest periods outside of it.

ohnonotgmail

seamus wrote: »

No, only if you are working.

If you are at your employer's disposal, but not working, then it is not "working time". It's pretty clear, right there. Both conditions have to be satisfied:

1. At your workplace, or available for work

AND

2. Doing work

If one of these conditions is not satisfied, then it is not "working time".

For example, if someone goes home and does some work off their own bat, that it not working time.

this is getting silly now. If you are on a break you are not doing work. that is the whole point of a break.

seamus

ohnonotgmail wrote: »

this is getting silly now. If you are on a break you are not doing work. that is the whole point of a break.

Right. And if you are on a break but on-call, you are also not doing work until that phone rings.

That was the point of contention.

Will I Am Not

I’m paid for my breaks and I can’t leave the premises during that time. I have colleagues that are not paid and they can. It’s totally unreasonable to ask someone to remain on company property for no pay.

Riskymove

seamus wrote: »

No, only if you are working.

If you are at your employer's disposal, but not working, then it is not "working time". It's pretty clear, right there. Both conditions have to be satisfied:

yes correct, in the same way that you can have a rest period while still in your place of work

my point is that if you are on a rest period then you are on a rest period and not "on call"

what has been suggested is not what is meant by "at your employer's disposal" in this context. An employer is not entitled to shorten your break and call you back to work