17th September 2010


 Issue No.  2010/23




This is no joke but this is a question that is to be considered shortly by an Employment Tribunal. 
Amongst the many frustrating employment and safety regulations in place we occasionally come across unusual cases that raise a smile.  For no other reason than to hopefully brighten the day, we chose to let you know about this one.
For Health and Safety reasons, a food-processing plant has a policy that requires all of its workers to clock out and then back in when leaving the food processing area; this includes times when workers are going to the toilet.
It has been reported that the workers (approximately 86) represented by their union, are making a claim to the Employment Tribunal in respect of the ‘deductions’ that are made to their pay every time they “spend a penny”.
The Company claims that workers are paid an additional allowance for this, but ultimately, unless the claim is resolved beforehand, it will fall for an Employment Tribunal to flush out the facts, (couldn’t resist!) and determine whether toilet breaks are paid or unpaid.  
Interestingly, in March 2010, the TUC highlighted toilet breaks as an issue with its report ‘Give us a (Loo) Break!’ advocating “the need for a specific legal right to use toilets in the employer’s time without a deduction in pay, and without any harassment”.
Whilst we believe this case will be an exception rather than a rule, if you do have a policy of not paying for toilet breaks, there are some serious wider issues such as: - 
  • Workers’ pay potentially falling below the National Minimum Wage. 
  • Pregnant workers who may make more visits to the toilet than other workers could claim that they are being treated less favourably due to pregnancy.
  • Workers with a medical condition or on certain types of medication resulting in more frequent toilet usage could allege disability discrimination for the increased pay deductions they suffer as a consequence of their disability. 
As they say – you don’t have to have a sense of humour to be an employer but it sure helps.




Employment Law
Health & Safety
Personnel / HR
Food Safety
Food Hygiene
Management Training



Making sense of it all

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