Article by Karen Holden, CEO of A City Law Firm
For many the way we work has changed significantly since the pandemic. COVID has accelerated digitalisation and the age of remote working is upon us.
Working from home has many benefits from increased flexibility and productivity to saving money. However, there are negative aspects too. ‘Home’ life and ‘Work’ life can blur together, and employees may find themselves working longer hours than they may have used to.
It’s no surprise working too much can lead to increased stress levels and serious burnout. But with economic uncertainty employees may feel obliged to work harder and longer hours. But what are employers and employees’ rights when it comes to overtime? And what actions can be taken if any? Karen Holden, CEO of A City Law Firm provides some advice and an overview on what you should know when it comes to working overtime.
Remote working can be anti-social at times and teams can be a bit disconnected. Regular communication is important on both ends to ensure alignment. As a first step employees should open up a conversation with their employer. It’s important to not stay silent and voice your feelings. We recommend setting out each other’s needs and concerns to see if a compromise can be reached amicably – this should be documented and monitored. Open dialogue and good communication usually makes it easier to overcome most concerns. At the end of the day if they don’t know this problem exists, they can’t try to address it.
Read your employment contract
If the above is not possible then the employee should look to their employment contract and the employer’s staff handbook (if available). This will help to understand any restrictions placed upon them, whether they opted out of the Working Time Regulations or agreed overtime, what processes are in place for flexible working and if necessary, what the grievance process is. However, if the documents don’t mention this then the employee should revert to the statutory employment rights available to all employees in the UK, subject to certain eligibility and criteria.
Legal hours you can work
The Working Time Regulations 1998 prevents employees working more than 48 hours a week. If you have opted out of this protection (in writing in your employment contract) an employer can request additional hours paid/unpaid as per those terms. If you wish to withdraw opting out of this protection you must serve notice in line with your contract and then you are able to reject future overtime requests. If your overtime is clear in the contract or you have opted out and you are being asked to work overtime in line with these provisions you have no legal basis to refuse.
However, regardless of what your contract stipulates or whether you’ve opted out you cannot be forced to work 24 hours, seven days a week. If you do not opt out, the law sees working over and above 48 hours unlawful. If you voluntarily work above this and have opted out, then the hours must not exceed such that you will be paid less than the minimum wage. Anything above 60 hrs would be questionable. Also, if you are not getting sufficient lawful breaks then it is not permitted. As a guide since employees are entitled to 20 minutes break for every six hours worked, there should be 11 hours between working days and at least 24hrs every week provided or 48hrs every fortnight. There are exceptions to the rules, but this generally applies.
If you haven’t been asked to work overtime but have been asked to carry out more work that is reasonably practical within your given hours this is an issue of capacity. Employees should set out how it’s impossible to complete the work provided in the time afforded; they should detail their hours worked and provide any evidence to support the challenges or health issues it is causing or caused. We would recommend communicating with your manager in the first place to outline your concerns to see if you can work together to address the issue, otherwise a grievance maybe required to address the imbalance.
If you are concerned that you are being discriminated against or you have concerns about your health or you have a disability, then you should raise these issues with your employer as you may have protection under the Equality Act. But again, communication is key as the employer cannot assist you or reduce your hours if they’re unaware of any potential health issues or concerns. If you are treated discriminatory or reasonable adjustments are not made for a disability, for example, then you will have protection and have the right to issue a grievance or even consider constructive dismissal.
Saying no to overtime
Generally, if the contract does not permit overtime they can refuse as this is an offer requiring consent; if the contract stipulates overtime is to be paid for then an employer must pay for this additional time; if the employer is permitted to request overtime in the contract and the employer does not wish to undertake it then they should speak to their manager setting out their reasons.
We remind all employees to first look at their contract and staff handbooks as a guide to the processes and protections available to them. Communication is key and a conversation with your line manager or HR may assist you reach a compromise. Speak out and document your complaints so that the employer not only understands these but has the opportunity to address them. If this fails and you have reason to believe you been discriminated against or you are suffering with a disability or ill-health put your grievance in writing and follow your employers process and seek advice not only from your GP but also an employment specialist to help guide you through the process.
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