Can I be forced to work overtime?

I am working on a flexible contract working four days a week for childcare reasons. My company want me to work unpaid overtime in the office on my days off. In my contract I have the usual blurb for “reasonable overtime from time to time” and it is unpaid. They have offered me TOIL, but this won’t work for me as I need to pay for extra childcare. Can I be forced to work overtime on my non-working days? When my flexible contract was agreed they said orally I wouldn’t be put in the position of having to work these full days unpaid and having to work overtime. We also agreed to work out a solution on a discretionary basis, but there is nothing in writing.

Upset women on the phone

 

There are a lot of strands to your situation and without a much more detailed discussion it isn’t possible to provide specific advice.  However, there are certainly a few points to consider and bear in mind as you try to resolve things with the company.

Without having seen the contracts and understanding what was agreed specifically at the time, it is difficult to give tailored advice.  However, purely on the face of what you are saying, if you work four days per week, requiring you to work two full days of overtime on top and unpaid is unlikely to be seen as “reasonable overtime”.   In addition, if you are working four days for childcare reasons and getting paid for four days, but working full-time hours, whereas others in the business are working full-time hours and getting paid for them, there is almost certainly an issue here, and one potentially of discrimination.

Generally speaking, it is important to try to retrospectively record the whole agreement in writing, to ensure that you have documentary evidence for the future just in case it is needed.  This could be anything from a simple email just setting out your understanding of what was agreed originally (both in writing and verbally) and asking for reassurance that this will be honoured, or it could be a formal grievance raising issue with the situation and requiring the company to deal with it seriously, including an investigation and meetings.

It is important to note that a company might treat your simple email as a grievance in any event if it is worded in a way that suggests dissatisfaction so if you go down this route and don’t want it to be formal, it’s a good idea to keep the wording positive and seeking reassurance rather than complaining as such.  If you feel things have already gone too far and informal amicable resolution is no longer an option, then it is important to submit a formal grievance to give the company an opportunity to investigate the situation and resolve it before you consider any more serious steps.  You should check the staff handbook/policies to see if there is a grievance policy and follow that if there is.  As your flexible working request was made based on childcare responsibilities, there is potential to allege discrimination in this scenario, but it isn’t possible to assess that without much more information.

Whichever way you decide to go it is important that you put in writing both what was agreed that you would do and what was agreed that you wouldn’t do, so that you record that you made it clear and it was understood that you couldn’t do TOIL, for instance.

In relation to the 48-hour working time opt out, you have the right to give notice to opt back in to the Working Time Regulations if you in fact are being asked to work more than 48 hours per week on average over a 17-week reference period.  If there is nothing in your contractual clause about the length of notice that must be given to opt back in, then you only need give seven days’ notice.  Any contractual provision requiring more notice cannot be more than three months.  It would be worth having a look at your working hours over the 17-week reference period to see if they average out at more than 48 and, if they do, you may want to consider exercising your right not to have to do that many hours.

I hope that the above assists to get things back on track for you with your employer, but, should things deteriorate, it would certainly be worth taking specific legal advice to understand your options.

*Marie Horner is an experienced senior employment law specialist at ALT Legal in Wetherby. She is also CIPD qualified in HR management.



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