With Christmas fast approaching many employees could be tempted to use their break times to squeeze in a spot of Christmas shopping, leaving them with no time to do anything else, including using the toilet.

Here David Lewis, Employment Law Specialist at Newport-based solicitors HardingEvans, advises employers and employees on their rights with regards to using the toilet outside of permitted break times.

He said: “It is hard to imagine a workplace where going to the toilet could potentially see a deduction made from an employee’s wage but this scenario is apparently the reality for some. Not only could wages be deducted, but employees could also face disciplinary procedures if they are found to be taking unauthorised toilet breaks.”

On the face of it, this seems incredibly unreasonable but taking into consideration the amount of time that could be wasted, employers might be tempted to limit the hourly exodus from the working floor in the run up to Christmas.

Under 12(1) of the Working Time Regulations an employee is entitled to a 20 minute break if they work more than six hours a day, but no breaks if they work less. An employer may therefore argue that this period should be utilised for comfort breaks and that additional times are not permitted or required.

In the absence of a specific clause in an employment contract, to deduct pay for toilet breaks is likely to be deemed an unlawful deduction. However, should such a specific clause exist then such deductions may well be permissible.

David said: “Employees should check their contracts carefully in this case, to ensure that they are fully aware of what is and what is not allowed. As with any such contractual term, the employer must balance up the benefits to them in potentially discouraging time wasting against the health, safety and wellbeing of their employees.

“Of course, employers must not forget to pay particular attention to any employee who may have a disability or be pregnant for instance, who, by law, may require reasonable adjustments.

“We would advise a pragmatic approach to toilet break policies - tailored to reflect the nature of your business."