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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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My girlfriend works a 5 hour shift, is she entitled to a

Resolved Question:

My girlfriend works a 5 hour shift, is she entitled to a break? She has also been banned from having a hot beverage, water only no questions. She has also been told she will be working evening shifts but she has a child of 13 who will be left alone until 8 pm and was told if she couldn't do the shift she would be sacked. Please let me know her legal standing. Yours ,stan hayward
Submitted: 3 months ago.
Category: Employment Law
Expert:  Ben Jones replied 3 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 3 months ago.

The right to rest breaks only applies once a worker has worked at least 6 hours, in which case the right is to a 20 minute break. So if someone works a 5 hour shift then there is no legal right to any breaks.

In terms of the hot drinks, this is not a legal right either and it is a personal preference. They should allow her access to water, which they appear to have done, but hot drinks are not an explicit legal right unfortunately so the employer can restrict that if they really wanted to.

Finally, assuming she has no fixed shift pattern which says she does not do night shifts, the employer can ask her to do that. If she has a child she needs looking after then she can make a formal flexible working request not to be considered for night shifts.

Once an employer receives a formal request they must deal with it in a reasonable manner, ideally meeting with the employee to discuss it and, if rejected, communicate their decision within 3 months of the date the initial request was submitted. When rejecting the request, the employer is only able to do so by relying on any of the following grounds:

· Planned structural changes

· The burden of additional costs

· A detrimental impact on quality

· The inability to recruit additional staff

· A detrimental impact on performance

· The inability to reorganise work among existing staff

· A detrimental effect on ability to meet customer demand

· Lack of work during the periods the employee proposes to work

Ideally, the employer should also try and explain their decision in writing, such as providing information on why they believe the selected reason for rejection is relevant and they have relied on it.

It is important to note that when selecting the ground for refusal the legal test is mainly a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged as incorrect.

An appeal can be submitted once the decision is communicated. If the appeal is rejected then the only option left is to make a claim in the employment tribunal. A claim can only be made on one or more of the following grounds:

· The employer failed to hold a meeting, notify their decision within 3 months or offer a right of appeal

· The reason for refusal was not for one of the allowed reasons

· The rejection was based on incorrect facts

The claim should be presented to the tribunal within 3 months of either the procedural breach or of the date on which the employee is notified of the appeal decision.

They can sack her for not doing the night shifts in the first place, assuming she has less than 2 years’ service. However, once she has submitted the flexible working request they need to at least go through that procedure first before they consider any sort of dismissal.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

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