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Should I be paid overtime if I am part time and working over my hours?
I work 30 hours per week. The company’s standard employment contract states that employees may be required to work overtime and that their salary covers this. My salary and benefits are pro rated down for my reduced hours. I come under constant pressure from my boss to work extra hours for no additional remuneration as it’s “in my contract” and am made to feel like I am a bad employee if I push back or expect anything where these hours become excessive, eg an extra eight hours or more in a week. Am I correct in thinking that I have a case under part-time working legislation to be paid for extra hours up to normal full time as otherwise I would be in a worse position than a full-time employee? And then to get paid/not paid for overtime above this on the same basis as full-time employees? Also this month, we have had staffing issues in the team and a full-time colleague and I have worked a lot of extra hours. My colleague has been paid overtime, and I believe my boss, who is part time, had her hours increased to full time temporarily so she would also get paid, but told me very bluntly that I could expect to have to work as many as eight extra hours per week this month and would be getting nothing for it.
As a part-time worker, you do not have the right to be paid for extra hours up to the normal full-time level. However, you do have the right not to be treated less favourably than a comparable full-time worker. Your employment contract cannot override that legal protection. For example, if your full-time colleague (whom I presume is doing a comparable job to you) is getting paid for all the overtime they do but you are not, that would almost always constitute less favourable treatment because of your part-time status and would be unlawful.
Even if your full-time colleague is not doing a comparable role, the business still needs to be reasonable when they decide whether to pay for the overtime or not and to treat employees fairly. If they decide to exercise discretion in respect of one employee but not the other then this may be grounds for a constructive dismissal claim if you have been employed for more than two years.
Although there is no contractual right to overtime, you would say that by treating you differently they have breached the implied term of trust and confidence. Also, if they have paid you every year except this one for working lots of overtime (even if it is dressed up as a bonus), they may be exercising their discretion unreasonably.
Similarly, it would be reasonable that they take into account factors which mean that you might struggle to do overtime. Depending on the circumstances, failing to take these into account could constitute discrimination if, for example, you cannot do overtime requested because you are caring for someone who is disabled or have childcare commitments.
I suggest you speak to your manager and discuss this with her. If your manager is unwilling or unable to change the overtime arrangements (including, perhaps, to increase your contractual hours for this short period of time), you could then raise a formal grievance. Ask the business to confirm in writing why you and your full-time colleague are being treated differently in respect of overtime payments.
Keep a note of your discussions with the business as, if they are unwilling to make any changes to their practices, you may need to consider bringing an employment tribunal claim. You can bring a claim for the way you have been treated whilst still employed by the business. I recommend you take legal advice if you are considering this route as there are obligations to go through early conciliation and there are strict deadlines for bringing a claim.
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Comments [5]
Amy Lawson says:
I used to work 35 hours a week. My company deemed this as full time. I have since changed my working hours to 28 a week. I used to receive time and a half Monday to Saturday and double time on a Sunday but since I went to part time I have to work at least 7 hours more a week at just time to qualify for the time and a half and double time payment. My full time colleague (a man) is paid time and a half Monday to Saturday and double time on a Sunday. We have the same job title and same job and receive the same wage yet I am paid less favourable for overtime because I work part time. I am confused how this is legal/fair when I don’t get paid the day I don’t work and lose out holiday entitlement based on the one less day a week I work. My union think this is discrimination under the equality act 2020. Please can I have some advice?
Pamela Forti says:
I have a contract for 30hrs a week in a care home but they keep asking me to do extra hrs I do get paid for the extra hrs but I don’t want any extra do I have to do them as I’m put under a lot of pressure to do it
Mandy Garner says:
What does your contract say with regard to overtime? It is expected within the wording, only expected occasionally or not mentioned? See https://www.gov.uk/overtime-your-rights/compulsory-overtime
Tracy says:
Hi I work nights 12 hour shifts in a care home contract was 12-hour shift zero-hour contract you get half hour of your break paid for and then the other half hour you don’t but now they’ve changed it to you work 12 hours. You have an hour break. That’s if you get it, but only get paid for 11 hours is this right because everywhere I’ve seen you allowed to be unpaid for 20-minutes of a break. I don’t know I’m quite confused. And also we have to be there 15 minutes before are shift starts for handover and dont get paid for that
Mandy Garner says:
Hi Tracy, Are all these changes to what you were doing before? If your contractual terms and conditions have changed then you should be consulted and your agreement obtained – see https://www.gov.uk/your-employment-contract-how-it-can-be-changed/dealing-with-problems. Have you agreed to the changes?