In the folk song ‘Drill ye Tarriers Drill’ Big Jim Goff is blown into the air by a workplace explosion and when he queries why his next wage packet is a dollar short he is told ‘you were docked for the time you were up in the sky’. We used to sing that song in primary school, so the issue of unlawful deductions from wages has been on my mind since I was about 7.
Workers have a right to toilet breaks, a UK government minister has confirmed, after a Welsh MP raised the case of a man who had his pay docked.
This intrigued me because nothing in UK employment law gives a specific right for workers to take toilet breaks. I thought it was worth looking up exactly what the Minister said:
This from Hansard 20 November Column 411:
18. Mrs Madeleine Moon (Bridgend) (Lab): What steps he is taking to prevent employers deducting money from staff salaries for toilet breaks. 
The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Jo Swinson): The Government would strongly encourage all employers, as a matter of good management practice, not to make deductions in pay for necessary and unavoidable interruptions to work. Employers who do not pay for toilet breaks may find themselves in breach of the Equality Act 2010 or of individual employment contracts.
Mrs Moon: I thank the Minister for that reply. A young constituent of mine was alerted, having just been sent details of his salary to his mobile phone. He was not told what the deductions were for. When he inquired, he was told they were for toilet breaks. The company tells me it makes ad hoc deductions for breaks away from the work station. Does the Minister agree that this is unacceptable, and if ad hoc deductions are made, they must be detailed and explained?
Jo Swinson: Absolutely: workers have rights to rest breaks, which there is a requirement for under law, and if deductions are made from pay, they have to be very clearly outlined—and if they take somebody below the national minimum wage, the employer could find themselves in breach of that law. I very much encourage the hon. Lady’s constituent to seek advice from the pay and work rights helpline on 0800 917 2368, and I am very happy that she has raised this issue and awareness of it in the House.
So actually the BBC story overstates it. The minister did not say that workers were entitled to toilet breaks, even unpaid ones. She said that employers should be encouraged as a matter of good practice not to make deductions for ‘necessary and unavoidable’ interruptions in work. But that is just good practice – being nice. It is nothing to do with a worker’s rights. However she also made some employment law points that are worth looking at.
1.’Employers who do not pay for toilet breaks may find themselves in breach of the Equality Act 2010…’
Well it’s difficult to see how. I think that we can all get behind the idea that if an employer makes deduction when women take toilet breaks – but not when men do – then that would be discrimination. But I think on balance it is fair to assume that the employer in question makes deductions for toilet breaks for all staff regardless of race sex or any other protected characteristic. The practice cannot therefore be direct discrimination.
Could it be pregnancy discrimination? I don’t think so. Pregnant women may need to urinate more frequently but failing to pay for a toilet break is surely not treating a woman less favourably ‘because of the pregnancy’ or even ‘because of an illness suffered by her as a result of it’ as required by s.18 of the Equality Act.
Indirect discrimination is not available in relation to pregnancy and maternity so the fact that a greater proportion of pregnant workers would be disadvantaged by the policy does not alter things. Nor do I see an indirect discrimination claim in relation to sex. It is true that all pregnant people are women, but most women are not pregnant. Besides, lots of men have an enlarged prostate.
There may be a disability claim of course, but even assuming a worker has a disability leading to bladder problems I’m not sure the cases support the requirement for paid breaks to be provided. In any event, we are drifting far from the general right to paid toilet breaks here. Basically, I don’t think the Equality Act angle works.
2.‘…or of individual employment contracts’
Well yes. if your contract gives you a right to paid toilet breaks then failing to provide them will be a breach of contract. But what about those employers who are cunning enough not to give a contractual right to paid toilet breaks? It certainly isn’t a contractual term that could be implied.
3 ‘workers have rights to rest breaks, which there is a requirement for under law’
Indeed they do. In any day in which a worker works over six hours he or she is entitled to a 20 minute rest break. This is required by the Working Time Directive and implemented by Regulation 12 of the Working Time Regulations 1998.
Trouble is, the entitlement is to an unpaid rest break. There are no provisions for paid breaks under the Regulations.
4 ‘if [deductions] take somebody below the national minimum wage, the employer could find themselves in breach of that law.’
Perhaps. However, hourly paid workers are not entitled to to paid breaks as long as they are paid the NMW for each hour of actual work. Salaried hours work does not include hours when the worker is ‘absent’ so there might be some leeway for the employer there. It really depends on how near the legal threshold the worker’s basic salary is and whether that is affected by deductions for toilet breaks. In any event this doesn’t amount to a right to paid toilet breaks as such.
5 ‘if deductions are made from pay, they have to be very clearly outlined’
I deal with this point last because it is the best point. The real legal issue in dealing with deductions from pay for taking toilet breaks are the provisions in Part II of the Employment Rights Act dealing with unlawful deductions from wages. The key provision is S.13:
13 Right not to suffer unauthorised deductions.
(1)An employer shall not make a deduction from wages of a worker employed by him unless—
(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or
(b)the worker has previously signified in writing his agreement or consent to the making of the deduction.
The question Mrs Moon needs to ask her constituent is whether the deductions from wages are authorised by the contract. Another potential issue is whether the constituent was given an accurate payslip but there is not much point in pushing that issue however as there is no compensation available – just a declaration from the Tribunal.
So on balance I would not answer the MP’s question in the same way as the Minister did. Were I advising her, this is the version I would have drafted.
There is no general right to paid toilet breaks under UK employment law. If the hon Lady’s constituent has had deductions made from his wages then the question is whether such deductions are authorised under the contract. If they are properly authorised then the employer is acting lawfully, however unfair that may seem. If they are not, then her constituent would be entitled to recover the amount unlawfully deducted by making a Tribunal claim.
Before making such a claim, however, he must first contact Acas to give them an opportunity to seek to conciliate a settlement. If that process fails (it normally takes 4 weeks) he will be issued with a certificate giving him a reference number that he must quote when making his claim. To recover the sum of £50 deducted from his wages he will have to pay a fee of £160. Should the matter reach a Tribunal he will have to pay a hearing fee of £230. If he succeeds in his claim the Tribunal is likely to order the employer to reimburse him for the £390 he will have spent in fees as well as the £50 he is due.
Should the employer refuse to pay this sum, he will be able to enforce it through the County Court system. A further fee of £50 will be payable and added to the total amount owed by the employer.
It may seem bizarre to the hon Lady that her constituent may need to spend so much to recover so little. All I can say is that the issue of Tribunal fees is the responsibility of the Ministry of Justice.
I’m not sure that the Minister would be happy with that reply.
The real scandal
The reason I wanted to write a (rather long) post on a £50 deduction from the wages of an employee in a call centre is that these employment rights really matter. They are low value in the scheme of things but £50 out of somebody’s salary can be the difference between making ends meet and becoming trapped with a payday loan. Employees in these cases cannot afford to risk £390 to recover £50. The ET fee regime has rendered the provisions on unlawful deductions from wages largely meaningless for the very employees who most needs the law’s protection. That, in my view, is a bigger scandal than the deductions themselves.