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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47340
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My daughter is working as a care assistant and is quite new

Resolved Question:

My daughter is working as a care assistant and is quite new to this post. She is being asked to work odd shift patterns - 8 am to 5 pm and then 4 pm to 10 pm in the same day. She may then be expected to start work again at 8 am the following morning. I know she has to have a minimum of 11 hours rest, is it legal to expect her to work the 14 hour shift. If she is on these shifts she is on her own and has no break times slotted in to the shift she is expected to work. I thought you were not allowed to work such long hours if you have not opted out
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What does her contract say about her working hours?

Customer:

she is on a zero hour contact

Ben Jones :

There are general rules to working times and rest breaks and rest periods and the usual situation is that a worker is entitled to a 20-minute rest break for every full 6 hours of work, an 11-hour daily rest period and an uninterrupted 24 hour weekly rest period (or alternatively an uninterrupted 48 hour rest period every fortnight).

However, the law does allow employers to require workers to work through periods which would normally be designated as their rest breaks or rest periods and there are specific exceptions when this could happen. One example is where the worker is a ‘special case’ one and nursing/care staff are mostly included on this, because they need to provide a continuity of service. In these cases the employer will be required to provide ‘compensatory rest’, which means they can allow the worker to take their rest breaks/periods at a different time than when they would usually be allowed to by law. So they could be required to work through their rest breaks or have reduced rest periods as long as this time is then compensated at some point.

This does not absolve the employer from ensuring the health and safety of its workers are looked after so if the prolonged hours create some sort of health and safety risk then that would take precedence and the employer must ensure that the workers’ exposure to any such risks is kept to a minimum.

Customer:

thanks for that information but she gets no rest break at all in these shifts

Customer:

is it legal for her to be working 14 hours? Am I right in thinking that it is not legal to be expected to commence work before an eleven hour rest period? She was not told at interview that she would be expected to work such long hours, is it normal for a company to put such long hours onto someone who has only been working for them for one month?

Ben Jones :

yes that can happen, it is possible for someone to work through their working day without any rest breaks as long as compensatory rest is given by the employer. Unfortunately the law is rather silent on how such rest should be administered and it could be that she is given longer breaks on her subsequent shifts to make up for the lack of rest breaks on previous shifts. And the same applies to the daily 11 hour rest period - she could get less than that as long as compensatory rest is given later. Her length of service is irrelevant in this respect

Customer:

Emma has just been looking at her contract, and it states that she is 'not obliged to accept a shif't, so therefore am I correct in thinking that if she says yes to the 8 - 5 shift and declines the 4 - 10 shift then they cannot reprimand her for not being available even though she has said that her availability is all that day, she has been asked to go to the office and speak to her manager about not wanting to do a double shift that she was not expecting to do a double shift. thanks

Ben Jones :

I am afraid they can take action against her because her rights are rather limited until she has at least 2 years' employment. So whilst she can refuse to accept a shift, if the employer is unhappy with that they can consider dismissing her - she does not have protection against unfair dismissal until she has at least 2 years' service with them so if they wanted to they could easily dismiss her because of that

Customer:

This seems odd as in her hours of work it states:

Customer:

the nature of the work covered by this contract will be intermittent and will vary. There is no obligation by Housing & Care 21 to offer you work on an ongoing basis, if offered, there is no obligation for you to accept it. Your actual hours of work will be determined by your supervisor/line manager in order to ensure that the necessary care is provided to service users. Your hours of work will vary from time to time. All hours relate to the actual delivery of care or other duties defined by your supervisor/line manager. Housing & Care 21 acknowledge that you are entirely at liberty to seek alternative employment from other organisations.

Ben Jones :

yes but none of the above would change her legal position in terms of a potential dismissal, if that is where the employer wants to take this. She does have the contractual right to refuse work given to her but at the same time if the employer believes she is not being flexible enough they can very easily (and legally) terminate her employment as a result. I am not saying it will happen but it is a risk

Customer:

Ok thanks - she is going to keep going at it as she want to do mental health nursing at uni. Nothing stopping her looking for a position that is a bit more thoughtful to their staff. much appreciated

Ben Jones :

you are most welcome, hope it works out for her

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