How should employers deal with salaried staff working unpaid overtime?
Figures suggest that UK workers worked unpaid overtime worth £31billion in 2017. Coodes Solicitors Employment Lawyer Philip Sayers explains an employer’s responsibilities to salaried staff working unpaid overtime.
Research by the Trades Union Congress (TUC) has revealed that in 2017 almost five million people worked an average of more than seven hours a week without pay. This amounts to unpaid overtime worth more than £31billion or £6,265 per worker.
So, what are an employer’s obligations and responsibilities to salaried staff who are working overtime?
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Should salaried staff be expected to work overtime?
Many workplaces have a culture of salaried staff working overtime. The typical scenario is of workers not feeling able to leave the office on time for fear of criticism. It is important for employers to ensure their contracts give all staff clear guidance on what is expected with regards their working hours. Perhaps more senior staff, who are on high salaries, should expect to have to put in some additional hours to get the job done. However, working late can be a particular issue for more junior members of staff, as there is a risk they could end up working for below the minimum wage.
Complying with the National Minimum Wage
While employers do not have to pay workers for overtime, an employee’s average pay for the total hours worked must not fall below the National Minimum Wage. Employers need to keep adequate records to demonstrate that they pay the minimum wage and failing to do so is a criminal offence. Not having records also makes it very difficult to successfully defend a claim which alleges a failure to pay the minimum wage.
Keeping within a 48 hour working week
Under the working time directive, UK workers cannot work more than an average of 48 hours a week unless they sign an opt out. Most workers are also entitled to a rest break of at least 20 minutes, if they work for more than six hours a day. This break does not have to be paid but it should be specified in an employment contract.
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Employment contracts should reflect your policy on overtime
It is important that your employment contracts address overtime and reflect your policy. Your contracts may specify that staff will sometimes have to work unpaid overtime, but you must still not ask them to work for more than 48 hours a week. Your contract may specify that staff can claim time off in lieu (TOIL) for some overtime, such as working evenings or weekends.
Businesses should ensure their employment contracts are legal but also reflect the needs of the business. This means continually reviewing contracts and policies. Where employers pay their employees for overtime hours this should also be reflected in the amount the employees receive as holiday pay.