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Q: Employment Businesses providing services to the agriculture and food processing industries are required to be audited against the TLWG code of practice and be licensed under the GLA 2004 (in the summer of 2006). We have had our audit conducted very recently with one problem singled out - weekly rest breaks!

The auditor stated (quite rightly) that workers are entitled to one days break out of every seven or two days rest in every fourteen days. A lot of our Eastern European temporary workers are keen to work overtime on weekends resulting in them not taking a days rest every seven or two days rest in every fourteen. This overtime is optional for the temporary workers and those that wish to work the weekend as well as Monday to Friday have all completed 48 hour opt-out agreements.

The DTI states on its website that, “Employers must make sure that workers can take their rest, but are not required to make sure they do take their rest.” As the temporary workers can choose whether or not they would like to work the optional overtime, are we not meeting our obligation under the WTR?

A: An employer is required, under the Working Time Regulations, to ensure that its workers are permitted (and have the opportunity) to take the weekly rest breaks set out in Regulation 11. The employer does not, however, have to compel its workers to take the breaks. This is confirmed by the DTI Guidance (available at ), which states that “employers must make sure that workers can take their rest but are not required to make sure they do take their rest.”

However, this position is currently under review: in February 2004, the European Commission decided to launch a legal case against the UK in the European Court of Justice for infringing the Working Time Directive. The Commission has stated that the guidance issued by the DTI (quoted above) “seems to encourage a practice of non-compliance” with the provisions of the Directive with regards to rest periods. The ECJ has yet to comment on this and so the duty currently remains unchanged.

Employers must also bear in mind that they are required by Section 2 of the Health and Safety Work Act 1974 to maintain the welfare of persons at work. If a worker is seen to be putting his or her health at risk (such as by not taking sufficient rest breaks), then the employer has a duty to take steps to remedy this. It should conduct a risk assessment and take whatever action is necessary to protect the workers from harming his or her health. The fact that the Working Time Regulations do not require an employer to force its workers to take weekly rest breaks will not be a defence. If the workers are not demonstrably making themselves ill, however, this should not arise.

Given these overriding health and safety obligations, it would make sense for employers to encourage workers to take their weekly breaks, and to keep a written record of their attempts to do so.