Rest days
All employees under a continuous contract are entitled to a rest day where they can abstain from working for a period of at least 24 hours in every period of seven days. This is in addition to statutory holidays.
In the corporate setting, Saturdays and Sundays are often designated as the rest days but employers should nonetheless take care in designating specific rest days as there are consequences for failure to do so.
In Breton Jean v HK Bellawings Jet Limited, [2022] HKCA 1736, the Court of Appeal considered the issue of whether an employee should be regarded as having a ‘day off’ if he was required to be on standby and report for duty within a reasonable period of being notified to do so but was not called out to work.
The Plaintiff was employed as a pilot of the Defendant, a business jet management company. He sought to recover 135 days of unpaid and untaken “rest days” as he alleged that pursuant to the terms of the employment agreement, company policy required him to be accessible by the company mobile phone within 1 hour and report for duty within 4 hours if he was on standby duty. The Defendant took the position that Plaintiff should only be considered on “standby duty” if he was contacted by the Defendant to carry out his duties.
The Court rejected the Defendant’s argument on the basis that if the Plaintiff was required to be on standby duty, he could not be considered as having a “day off” upon proper construction of the Employment Contract.
Similarly, the Justices of Appeal cited Leung Ka Lau & Ors v The Hospital Authority, FACV 22/2008 and 23/2008 in their judgment, where the court held that “a day when an employee is not entitled to abstain from working for his employer does not constitute a rest day”.
Practical Tips for Employers
One key takeaway for employers is to clearly specify in the employment contract what the designated rest days are. If employees do happen to work on their rest day, employers should be aware that they must provide for an alternative rest day.
For further information, please do not hesitate to contact our employment lawyers.
For further information, please contact:
Felda Yeung, Partner, Gall
feldayeung@gallhk.com
