Unpaid Overtime: Overworking above and beyond contracted hours.
A recent study has found that last year employees In the UK worked the equivalent of £32 billion worth of unpaid overtime. In working hours this equates to over 2 billion hours of overtime. Whilst sitting down to write this at home after a day at work, this is hardly surprising.
Most employees appreciate that there are circumstances beyond their control that require them to work above and beyond their contracted hours, this especially case if you are a teacher, chief executive or legal professional, since according to the TUC these are the professions in which the most overtime is worked.
The growing trend of overworking
‘Overworking’ is a growing trend and there several contributing factors leading to this phenomenon. For some it just might not be possible to have a conversation with their employer about the hours they are working so they continue to work the overtime, or they might inadvertently feel that they are letting someone down by choosing to leave at the end of their contracted hours.
Is overtime unpaid?
Unless provided for in your contract, your employer doesn’t have to pay for overtime, however they do have to ensure you are paid above the national minimum wage. This means, for example, if you are paid £7.83 per hour and you are contracted to work 40 hours per week, but work 48 hours per week, it works out that your employer is actually paying you £6.53 per hour. If this figure falls below minimum wage you may be able to raise complaints to an employment tribunal.
What are the Working Time Regulations 1998?
In some professions you are required, regardless of your contracted hours, to work more than 48 hours per week. The Working Time Regulations 1998 provide that a worker’s working time, including overtime, shall not exceed 48 hours for each seven days worked.
An employee can choose to work beyond those 48 hours by opting out, which must be done in writing and be signed by the employee. It is also important that the opt out agreement is voluntary and can be revoked at any time by the employee provided they give notice. The employee can revoke the opt out agreement even when it is provided for in the employee’s contract. There are, however, certain professions where employees can’t opt out, and certain professions that require employees to work more than 48 hours per week on average. The professions include the armed forces and the emergency services. Nevertheless, ‘working time’ will not include voluntary overtime.
Voluntary overtime is of that very nature, voluntary and covers the circumstances where you choose to stay late willingly to finish off something, for example.
The consequences of overworking
Beyond the potential legal pitfalls, employers should be aware of the overtime their employees are working, voluntarily or not. There is plenty of literature which suggests that employees who are overworked are less productive and more susceptible to stress. This can lead to sickness absences, low output, and difficulty retaining staff. A responsible employer should consider supporting their employees who have high workloads, encourage their staff to take regular, uninterrupted rest breaks, and to consider re-evaluating current staffing levels or division of responsibilities. If these factors are not taken into account, the employer may find themselves facing constructive dismissal claims from employees who felt forced to work beyond their contracted hours.
An employee may be entitled to terminate their contract where they have been forced, explicitly or otherwise, to work beyond the hours contracted. There are also numerous case examples where employees have brought breach of contract claims for stress caused by excessive workload. As a result of a successful constructive dismissal claim, an employer may face paying not only their legal costs and the amount awarded to the successful employee but also the cost of recruiting a replacement member of staff and any associated training.
Overtime from an employee perspective
As an employee, it is important to be mindful of your own health when you are next considering working through your lunchbreak or staying behind an extra hour or two to stay on top of your work. Looming deadlines can often make these habits unavoidable, but it is worth bearing in mind the impact it can have on your overall productivity moving forward. This can quickly snowball until you find yourself in a vicious circle where you are working overtime to meet deadlines but because you are not properly rested your productivity slumps and you need to work even more overtime as a result. Keep a record of any hours you do over and above your contracted hours, and try to let your employer know if you have any concerns relating to overtime.
Overtime from an employer perspective
As an employer, it is in your best interest to ensure that your employees are well-rested and capable of completing their work within the hours they are contracted to. Overworking hurts productivity, leaves workers stressed and exhausted and eats into time that should be spent with family and friends. Your employees will become unhappy and puts them at risk of developing a number of stress-related illnesses, ranging from fatigue and exhaustion to cardiovascular diseases and depression. This could be detrimental to your business leaving you struggling to meet demands if you have employees regularly taking time off with illnesses, and even struggling with staff-shortages if employees find their employment no longer tenable. Where you as an employer know that the employee is subjected to an excessive workload, causing damage to their health and that damage was reasonably foreseeable, the employee is likely to have a claim in negligence against you as the employer and also a claim for constructive dismissal.
Legal support with overtime issues
Having read this article, if you think you there is an issue with regards to overtime in your place of work, don’t hesitate to get in touch. Please remember there are strict time limits in Employment claims, and you should take good free legal advice as soon as possible.
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This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.