Not allowed to leave building during work break at night

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

Aint Eazy Being Cheezy

seamus wrote: »

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.

You’re on call with the presumption that you may be asked to work, and paid accordingly.

If you’re on an unpaid lunch break, it’s unreasonable to specify what an employee may or may not do.

the_syco

BetterThanThou wrote: »

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.

Is the only entrance/exit via the shopping centre?

runawaybishop

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 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.

Shorter sentences Seamus!

In both the UK and the US examples it comes down to what is reasonable. I am sure there are legitimate scenarios whereby employees must remain on site or in designated areas, but the op doesn't seem to fall under them. Op should be free to go off-site on his lunch break.

seamus

Riskymove wrote: »

An employer is not entitled to shorten your break and call you back to work

Well, yes they can, provided that such a possibility has been flagged in advance, such as in your employment contract.

But they have to provide you with a compensatory rest period in such an event.

Aint Eazy Being Cheezy wrote: »

You’re on call with the presumption that you may be asked to work, and paid accordingly.

There is no obligation to pay someone for being on call.

If you’re on an unpaid lunch break, it’s unreasonable to specify what an employee may or may not do.

Perhaps in most cases. But in some contexts, it may be perfectly reasonable. Such as where the employee is working the night shift, security (of stock and employees is a concern) and where appropriate facilities have been provided inside the building such that there is no need to leave.

Riskymove

seamus wrote: »

There is no obligation to pay someone for being on call.

there is if they must be in a particular location while on call

seamus

runawaybishop wrote: »

In both the UK and the US examples it comes down to what is reasonable. I am sure there are legitimate scenarios whereby employees must remain on site or in designated areas, but the op doesn't seem to fall under them. Op should be free to go off-site on his lunch break.

Yes, there we go. "What is reasonable."

I don't think we have enough information in the OP tbh to decide whether it's reasonable that he should have a blanket right to go outside on his break.

Certainly the indication given is that there are ample facilities inside the premises for food and water, and there is a stated security risk such that they want to minimise the amount of times the shutter is opened.

So it seems reasonable that opening the shutter to facilitate smoke breaks is not permitted.

Riskymove

seamus wrote: »

Well, yes they can, provided that such a possibility has been flagged in advance, such as in your employment contract.

But they have to provide you with a compensatory rest period in such an event.

we were discussing a particular idea - that you are "at the disposal of your employer" - interpreted as being "on call" - while on a rest period and are available to your employer. There is no requirement for you to be available when on a rest period

In your example if people have agreed to other conditions for emergencies etc grand

ohnonotgmail

seamus wrote: »

Yes, there we go. "What is reasonable."

I don't think we have enough information in the OP tbh to decide whether it's reasonable that he should have a blanket right to go outside on his break.

Certainly the indication given is that there are ample facilities inside the premises for food and water, and there is a stated security risk such that they want to minimise the amount of times the shutter is opened.

So it seems reasonable that opening the shutter to facilitate smoke breaks is not permitted.

If there are insufficient staff to allow the OP to leave their work area while on a break then the company need to correct the security situation.

seamus

Riskymove wrote: »

we were discussing a particular idea - that you are "at the disposal of your employer" - interpreted as being "on call" - while on a rest period and are available to your employer. There is no requirement for you to be available when on a rest period

In your example if people have agreed to other conditions for emergencies etc grand

Well, the discussion (at least the one I was having! ) was about whether someone could be on their break *and* on call, not whether they had to be on call.

ohnonotgmail wrote: »

If there are insufficient staff to allow the OP to leave their work area while on a break then the company need to correct the security situation.

That's not explicitly required. Perhaps a court may rule so. There are in fact many scenarios where you do not have the premises fully staffed at all times, and during periods of lower staffing, those on their breaks can be asked to remain in the building and/or "on call" in an emergency.

And as above, once this has been agreed to as a condition of employment, then all is hunky dory. The company does not have to have a security person on duty in order to allow all employees to leave the building.

If we go back to what is "reasonable", a court may ask why they don't have a security person, and the company may remark that the volume of work required of a security person during the night shift is so little that it is not necessary. That is, it would unreasonable to force the company to have a security guard on duty so that employees can go for a smoke.

runawaybishop

seamus wrote: »

so that employees can go for a smoke.

I don't think smoking is relevant, though the op mentions it. What's relevant is whether it is reasonable to allow staff to leave the premises for any reason.