Forced to work regular overtime

I work part-time, 30 hours a week and have been at my job for over a year doing these hours. My employer has recently stated that everyone is required to do an hour’s overtime every day until requested to stop. It does state in my contract that ‘it is a condition of your employment that you are available to work additional hours over and above your normal weekly hours when authorised and as required by the needs of the business’. I cannot possibly work overtime due to picking my son up from school straight after work every day. I don’t know what to do or say to my employer. My partner is away a lot and I have to be home for childcare reasons, which my boss knows.

Gavel with employment written on it, representing employment law

 

As you have worked for your employer for approximately a year, you do not as yet have full employment protections such as the right not to be constructively unfairly dismissed, which would require two years’ continuous service. This means that there is little in the way of statutory protection for you if (for example) your boss’ recent instruction prompted you to resign.

However, you do have some protection such as under the Equality Act 2010. Within the scope of the Equality Act 2010, there are different types of unlawful discriminatory acts by employers. The one which might be of some relevance to your situation is that of “indirect discrimination”.

Indirect discrimination might occur when an employer applies an apparently neutral provision, criterion or practice (“PCP”) which puts workers sharing a protected characteristic at a particular disadvantage. The Equality and Human Rights Commission’s Statutory Code of Practice categorises this into four requirements which provide a useful step by step breakdown:

1. “The employer applies the PCP equally to everyone within the relevant group, including a particular worker”: In your case, the PCP might be that everyone is now required to do one hour’s mandatory overtime every day until your boss states otherwise. This appears to apply to everyone equally and neutrally, including yourself.

2. “The PCP puts, or would put, people who share the worker’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic”: The relevant “protected characteristics” for the purposes of indirect discrimination are ‘age’; ‘disability’; ‘gender reassignment’; ‘marriage and civil partnership’; ‘race’; ‘religion or belief’; ‘sex’; and ‘sexual orientation’. As an illustrative example, there have been cases of indirect discrimination where an employer required employees to work full time, such requirement disadvantaging women as a group, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part time.

3. “The PCP puts, or would put, the worker at that disadvantage”: this would apply if your boss’ instruction to work an extra hour would cause not only a greater disadvantage to anyone with the particular protected characteristic relied upon (such as the illustrative example given above) but has also caused, or would cause, that greater disadvantage personally to you.

4. “The employer cannot show that the PCP is a proportionate means of achieving a legitimate aim”.

If you believe that your boss’ instruction satisfies the requirements described above, then you could consider whether to lodge a discrimination complaint under your employer’s grievance policy. The Equality and Human Rights Commission’s Statutory Code provides other useful examples and explanatory comments which should help you consider whether or not you believe this amounts to discrimination.

If a grievance does not resolve the issue and you wished to pursue your right to be protected from indirect discrimination to the Employment Tribunal, you would be required to start that process no later than 3 months less 1 day from the act of discrimination itself otherwise the Employment Tribunal may reject the claim as being out of time. The first step to start the Employment Tribunal process is to contact the Advisory Conciliation and Arbitration Service (ACAS) within the above timeframe to commence Early Conciliation. Further information about the Early Conciliation process is available here.

The grievance procedure is still available to you even if your concerns do not amount to discrimination. Your employer’s grievance procedure should be easily accessible to you either upon request or available within the company handbook.
If you decided to lodge a grievance, your employer’s grievance policy should comply with the ACAS Code of Practice on Disciplinary and Grievance procedures. This Code and its accompanying guidance sets out what to expect from a grievance procedure and your rights to appeal if you disagree with the outcome.

A final point to consider is whether your contract of employment states that you should receive pay, at an hourly rate say, for any additional hours required of you above and beyond your core hours of 30 hours per week. If it does, you will, of course, be entitled to be paid in accordance with that provision in the contract. Accepting that payment is very unlikely to prejudice a discrimination claim and you would have a potential claim for unlawful deduction of wages if you are not paid overtime pay where your contract provides for this.

*Gemma Bailey is the Head of Howells’ Employment Department. Gemma advises individuals and companies on the full range of employment issues. 



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