Docking wages for toilet breaks: the real scandal

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.

The song came to my mind this week when I saw (hat tip to Canter, Levin and Berg) the BBC News story headlined ‘Toilet breaks are a worker’s right, minister tells MPs’. The BBC reported:

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. [906152]

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.

My Answer

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.

About Darren Newman

Employment law consultant, trainer, writer and anorak
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18 Responses to Docking wages for toilet breaks: the real scandal

  1. Simon Jones says:

    I had an exchange of tweets about this with Jo Swinson (who, to her enormous credit and unlike virtually any other politician of any party, let alone a minister, will quite often respond to employment law issues on Twitter). She did suggest the Equality Act issues were pregnancy – which you’ve disagreed with – and disability. I can see the disability angle – if you are a person with a prostate or bladder condition who requires more frequent toilet breaks, then deducting pay every time you go would be clear discrimination.

    But I totally agree with your main point – that it’s an unenforceable right for most workers given the tribunal fees.

    • I quite agree that docking pay for someone whose disability causes increase toilet breaks could be unfavourable treatment arising from a disability. That brings it within s.15 of the Equality Act. However there is the potential defence that the treatment is a proportionate means of achieving a legitimate aim. In general it seems to me that the EAT has been reluctant to require employers to pay disabled people more in respect of absence than a non-disabled person would get, but we haven’t had many cases on this section yet.

      Of course even if it was discrimination the loss is still likely to be small – plus a few hundred for injury to feelings – and the case attracts an even higher fee. I doubt we’ll ever actually see the point litigated.

  2. Audrey Ludwig says:

    Not sure if it makes a difference, but the test in section 18 for the treatment of pregnant women is “unfavourable”not “less favourable”

    • You are quite right, I should have said unfavourable rather than less favourable – I’m always forgetting that.

      I don’t think it makes a difference however as what really matters is whether the treatment complained of is ‘because’ of the pregnancy or an illness connected with it. I don’t think either is the reason that the deduction is made. The same deduction is made for everybody regardless of pregnancy. S.19 (indirect discrimination) does not apply to pregnancy and maternity, so I really don’t think the pregnancy discrimination argument works.

  3. I have been thinking about the contractual point, in addition to what I said on twitter regarding the s.15 point.

    I should begin by emphasising that I wholeheartedly agree with the final paragraph, namely that any discussion on the law is academic unless the employee/worker has the ability to argue the point in Tribunal. The fact that we are having this discussion only serves to emphasise the point.

    The express terms of the contract would be one of the following:
    1. There is an express term that toilet breaks are paid.
    2. There is an express term that toilet breaks are unpaid.
    3. The contract is silent in respect of toilet breaks and expressly referring to them.

    I suspect that option 3 is the position with regards to the vast majority of employment contracts. I also suspect that a significant percentage within that majority don’t have pay deducted when they go to the toilet.

    When the contract is silent on the point, you would start by looking at other terms to work out if they could cover it. A good place would be any clause relating to remuneration. Does the clause expressly link pay to tasks performed? Is the employee paid hourly or on a salary? You would then also look at whether there are any clauses relating to ‘rest breaks’ generally, though I am not convinced that the performance of a necessary bodily function would automatically fall within this.

    The general proposition is that pay is in return for work done. Yet, millions of employees throughout the UK will take toilet breaks and have no deduction from their wages. What is their contractual position? In those cases, in the absence of an express term are we not implying a term that the employer will pay for toilet breaks? What we can say with some confidence is that an employer couldn’t employ someone for a number of years and then one day assert that the contract which is silent on the point does not allow for paid toilet breaks. In those circumstances, in the absence of an express clause would the employee not be arguing that an implied term exists?

    In the present case, I accept that the facts are unlikely to be agreed. However, in the example cited in Parliament, employees seem to be finding out about the deduction after the event. For me, that raises an argument that the deduction is unauthorised, especially if the contract is silent on the point.

    Thinking generally, if the employee is paid on an hourly basis, the employer could find themselves in difficulty by taking such a point. Unless the contract has been drafted limiting the hours within which the employee could work, the employee in turn could start taking the point that the extra ten minutes that they stay behind at the end of the day is work that should be paid or when they receive a phone call at home from work they are working then.The give/take inherent in the employment relationship starts to erode. For employees on the National Minimum Wage, work which is being done and not remunerated means that they are being paid less than the minimum.

    The practical point of course is that this doesn’t get litigated either because most employers don’t wish to micro manage their employees in this way/don’t want to seem petty or that employees aren’t in a position to litigate the point when it does arise. I exclude from this the NMW point above, which I have seen.

    • I would certainly agree that an employer cannot suddenly stop paying for toilet breaks. Whether you treat this as an implied term, or merely interpreting the contract by looking at how the parties have performed it probably doesn’t matter much. The key point I think is that to make a deduction from a salary there has to be clear written authorisation to do so. If there is then that really takes care of the contract point as well.

      Of course if the worker is simply paid for work done, then not paying for toilet breaks is not a deduction at all – simply a correct payment of the amount properly due. So if the employee has to clock on and off and the toilets are located beyond the ‘clocking in’ point then he or she won’t be paid for the breaks, but that probably won’t be a deduction from wages.

  4. Perhaps workers could just surreptitiously relieve themselves in the nearest bin (or manager’s coffee cup) – or employers could install commodes instead of office chairs.

    Failing that, perhaps an activist judge will rule that micro-managing relief breaks in such a harsh way constitutes “intimidating, hostile, degrading, humiliating, and offensive behaviour” and is contrary to the Protection from Harassment Act 1997 or Human Rights Act 1998.

    @HuwSayer

  5. After a few Twitter exchanges I think I should add some comments about the pregnancy discrimination point. Some people are arguing that failure to pay for toilet breaks would indeed amount to pregnancy discrimination. I disagree.

    It is of course right that in this context we do not need to look at how other comparable employees are treated. We are looking for unfavourable treatment rather than less favourable treatment.

    However not all unfavourable treatment of a worker who happens to be pregnant will amount to pregnancy discrimination. The unfavourable treatment must be ‘because of the pregnancy’ or ‘because of illness suffered by her as a result of it’. There are also some grounds associated with the taking of maternity leave that do not concern us here.

    So the question to ask an employer who has made a deduction for a worker’s pay is ‘why did you do that?’

    If the answer is ‘because she was pregnant’ then that would obviously be discrimination.

    But what if the answer was ‘because I don’t pay for any toilet breaks’? You could go on to say ‘but pregnant women take more toilet breaks than others’ but I don’t see that that changes the reason for the unfavourable treatment. Pregnancy is not one of the criteria used by the employer to determine whether or not to pay someone who takes a toilet break. While pregnant women may need more of those breaks, going to the toilet is not a condition unique to them.

    I stand by the assertion that refusing to pay for any employees to take toilet breaks will not amount to pregnancy discrimination.

    If anyone wants to put forward the counter-argument, please feel free to reply to this comment.

    • Darren, thanks for raising this pressing issue. But aren’t you falling foul of the “sick man” fallacy (Webb v EMO)? Except in this case it’s a weeing man fallacy. If you treat someone unfavourably because of needing to take toilet breaks where those breaks (or some of them) are a result of pregnancy, it’s arguably no defence to say that you treat a weeing man (or non-pregnant weeing woman) the same.

      • I don’t think I am. The problem here is that dropping the comparator does not mean dropping the ‘reason why’ test which is still there.

        Focussing on the fact that some of the breaks are pregnancy related seems to me to be applying a ‘but for’ test which I think can lead us astray.

        Here’s a point though. If an employer only pays SSP when employees are off sick, would it be pregnancy discrimination to refuse to pay full pay to a woman absent because of a pregnancy related illness? That seems to fit S.18 more closely.

        Good to bump into you online again.

      • Personally I think the ECJ in a variety of cases since Webb have extended the meaning of the “reason why” test in pregnancy/maternity cases to the extent that it almost (if not actually) is a “but for” test.

        But I’ve revised my view, having just remembered the ECJ case of Northern Health Board v McKenna, which seems to draw the distinction between questions of equal treatment and questions of equal pay.

        When it comes to “treatment”, the rule in the Webb line of cases is pretty much that where the reason for unfavourable treatment is pregnancy-related, it’s unlawful. So where the reason is “absence”, and the absence is pregnancy-related, that is sufficient.

        But for pay, which falls under Article 157, you can (indeed SHOULD) apply a sick man comparison. McKenna makes that pretty clear:

        So I think what I’m saying is that if a pregnant woman needs to wee more frequently than a man you can’t discipline or dismiss her but you can in theory dock their pay (subject of course to the contractual position on doing so).

    • You too by the way. I always enjoy your blog.

    • mcnerney64 says:

      The the marginal difference in toilet breaks between a non-pregnant woman and a pregnant woman is because of pregnancy and therefore those breaks not paid above the usual rate or urination is because of or pregnancy related.

      • Thanks for responding.

        I’d accept that they are pregnancy-related or arise from the pregnancy. But they are not ‘because of’ the pregnancy which is what is required for direct discrimination – at least that is my view.

        Note that the Equality Act has specific provision making it clear that less favourable treatment for pregnancy related sickness absence is direct discrimination. There is nothing for pregnancy-related breaks where these are not based on illness.

        I’d love to see a case on this.

  6. I endorse Huw’s proposal, even if it fails to address Number Twos.

  7. DC says:

    We have had this debate in work today. Echo Managed Services manager Edwin Jones has confirmed the company will be docking peoples pay (like for like or percentage based was not specified) for anyone who exceeds there 15 minute natural break allocation for lavatory breaks.

    A colleague pushed back citing TUCs example and we were told we could speak to them in special circumstances… that was until one of the women pointed out they do not feel comfortbale having to tell their male manager every time they are menstrating.

    He said he would go away to discuss with management.

    On a slightly different topic, we are expected in the office 10minutes before we begin work due to the computers we have been provided essentially take 8-10 minutes to fully boot up & log in. We were informed we are not paid for these 10 minutes and we are docked pay if we are not logged on a dialing at bang on 9am… that is 9:00.00am… we are docked pay & marked late by 1 minute or more if we begin dialing at 9:00.02am for example.

    where do we stand legally on both topics?

    • Hi DC

      Tricky to say. The key point is whether, if you add up all the hours you work (which will include the 10 minutes waiting for the computer to start up) you are being paid on average at least the Minimum Wage. If your rate is well above the minimum then it is unlikely that an extra 10 minutes a day will affect that. If so, it just becomes a matter of what the contract says. There may be an issue with the deductions being made if they are not authorised by the contract or disproportionate to the amount of work missed. If you think the employer is taking employees for a ride, then the best advice I can give is to join a trade union and see if they can help.

      Cheers

      Darren

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