Whether employees are required to work overtime or not is generally based on their contractual terms. A written contract of employment must legally contain information on the employee’s hours of work and, therefore, if you are expecting your staff to work overtime this should be set out in their written terms. Without such, it may be difficult to enforce different working hours on your staff, though an employee could voluntarily consent to working overtime.
Employers are, generally, free to impose any rules on the working of overtime and the payment for this as they wish. As overtime is only required due to the needs of the business this will allow the clause to be more flexible and can state that staff may be required to work overtime as and when directed. A contractual clause will guarantee that overtime can be enforced on employees when needed and will allow for a more consistent enforcement of overtime than a voluntary agreement with an employee to work here and there. Including an overtime clause in new contracts will ensure that new starters are working under these terms straight away and can be required to work overtime.
For existing staff, the inclusion of an overtime contractual clause will constitute a change in their existing terms and conditions so a different process will need to be followed. In the first instance, talking to existing employees may be sufficient to create agreement. Sitting down and explaining to your employees the reason why you need the overtime, the number of times it will crop up due to business needs, and what will happen if overtime doesn’t occur, e.g. missed orders and a loss of business, may lead to agreement with existing employees. However, if they do not agree to the change, a formal approach including a period of consultation will need to be carried out.
When considering requiring employees to work overtime, employers should be mindful of the 48 hour maximum working week, as implemented by the Working Time Regulations 1998. This states that an employee’s average working time should not exceed 48 hours for each 7-day period, averaged over a 17 week period, though an individual can voluntarily agree to opt-out of the limit. Employers should also be conscious of the inclusion of payment for overtime in calculations of holiday pay.
For further advice on this issue contact the Peninsula Advice Service on 0844 892 2772.
