Unpaid overtime: your rights


Employees are working an average 7.2 hours a week each in unpaid overtime, figures from the TUC reported this week.

Good news for businesses, but not so for staff who are effectively working for free. So what are your rights and what can you negotiate in return for this unpaid overtime?

Check your contract
Your employee rights regarding unpaid overtime depend upon what is outlined in your contract. If your contract of employment does not stipulate that you may be required to work outside your normal working hours without being paid overtime, you cannot be forced to do so, explains Anthony Sakrouge, Partner and Head of the Employment team at Russell-Cooke Solicitors.

"Senior employees and most professionals have clauses in their contracts saying that they may be required to work such reasonable additional hours as the demands of their positions require. Many of these also contract out of their right to object if they are asked to work an average of more than 48 hours a week," adds Sakrouge. "The government could make it illegal to opt out of this right, as it is in other countries, but there seems to be little prospect that this will happen."

Working hours
Being requested to stay late or work through lunch to finish a specific project is a common occurrence in many workplaces, but if this happens too often you may have a case against your employer. Sakrouge explains: "If this happens regularly, the employee could bring claims for breach of the Working Time Regulations and/or constructive dismissal, particularly if they are only contracted to work set hours."

Where employees have a contractual right to be paid overtime, they can refuse to work additional hours without payment - even if the project is important and pressing, explains Sakrouge. A tricky situation arises if your contract does not state that you are required to work overtime – paid or unpaid – as in theory you can refuse, but it can affect your progress at work if you don't show willing to work above and beyond your responsibilities on occasion.

Raise the issue
If you feel like your boss is taking advantage of your willingness to work overtime, it is important to raise the issue at the earliest opportunity rather than carry on and grumble in silence.

"It is vital to remain calm and not to become angry or emotional," explains Jackie Keddy, co-author of Managing Conflict at Work. "Really think before going in to speak and plan what you will say. Deliver your situation statement calmly and give an assessment statement with supporting evidence."

Voluntary overtime
Many employees will be familiar with the situation of feeling obliged to take a short lunch break or stay late as you don't want to appear to be not working as hard as eager colleagues. Of course if you carry out your duties well within your contracted working hours there may be no need to put in overtime. However, if you feel that your boss is treating you differently to other staff because of sticking rigidly to your contracted hours, bring the issue to light as soon as possible.

"Make a factual statement with incidents where you feel that this has occurred," advises Keddy. "Make your case with good objective reasons, demonstrate that you still deliver, perhaps more so when less tired and frazzled. By flagging this up it may assist an employer in actually seeing the merits and stop it happening."

Negotiate non-monetary benefits
Continued overtime and working beyond your responsibilities may trigger the issue of a pay rise – read our guide on how to negotiate the tricky topic with your boss. Another option is to discuss non-monetary benefits, such as more annual leave, flexible working, gym membership or private health care, in return for working unpaid overtime. If colleagues are in a similar position, discuss the issue together and approach your boss with a group proposal.

"A good way to highlight the merits of non-monetary benefits is to actually echo and appreciate the pressures that the employer is under," suggests Keddy. "For example, approach with: 'We understand the pressures you are facing. We know how tight budgets are. We are aware that we all need to work longer hours. Would we be able to take some time off in lieu, if we work make sure that there is always enough cover?'"

Explain the benefits to the company of your proposal. "Employees could present the subject of
letting staff having time off in lieu or more leave, for example, by explaining that they will feel more valued, perform better and be far less tired," explains Keddy. "Put across the importance of feeling that there is compromise on both sides and being fairly treated."
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