Martin Brewer and Esther Smith advise on whether an extra rest day is required for a 20 hour employee after a night shift.

Rest day after night shift

A member of staff moved from a 30 hour contract to a 16 hour contract to allow him to study for a course which he doesn’t need for this employment. All staff do day shift, back shift and night shift. When working 30 hours this member of staff only worked over four days instead of five when he did night shift. If he works two nights now he works twenty hours which he is paid for and is off for the rest of the week. Should he be given another day in lieu as a rest day after doing night shift?

Legal advice:

Martin Brewer, partner, Mills & Reeve

I think that the only sensible way to answer this is to look at the worker’s entitlement to rest under the Working Time Regulations. I am assuming that if the worker works the two night shifts in a week he doesn’t do any other work (as that takes him over his 16 hour contract). A worker is entitled to daily rest of not less than 11 consecutive hours in each 24 hour period. As I read your question each night shift is 10 hours and this employee works two nights in a row. Assuming start times don’t vary the time between the end of one night shift and the start of the next there will be 14 hours uninterrupted rest between the two shifts – so no breach of the WTR. In terms of weekly rest the WTR require an uninterrupted period of not less than 24 hours in each seven day period or, alternatively two uninterrupted periods of 24 hours in each 14 day period. So again looking at your question there appears to be no breach of the WTR.

I conclude that no, you don’t need to allow another day in lieu.

Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.

***
 

Esther Smith, partner, Thomas Eggar

There is no obligation under the Working Time Regulations 1998, which provide for minimum rest periods, to pay employees for rest periods. The important thing to comply with regarding these regulations is to make sure the employee has the rest between periods of work, which appears to be happening here.

However, the only thing to say is that as a part-time employee (who can compare himself with other full timers or indeed with himself when he was working full time) he has the right not to be treated less favourably on the grounds of his part-time status. Therefore if the full-time employees get paid time off for their rest periods then arguably he should too.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.