Overtime at Christmas

In some sectors, overtime and Christmas go together like turkey and cranberry sauce. But what are the legal implications regarding overtime, and what do employers particularly need to take into account during the festive period?

Contractual issues

When considering the requirement for employees to work overtime, the starting point should be the Contracts of Employment. Many employers will have an ‘express right’ to require an employee to work supplementary hours as the needs of the business dictate.

However, even with an express right, this is not the whole story. Case law has shown that there are three broad categories of overtime:

  1. Guaranteed overtime: A compulsory requirement for employees to work it, but even if the employee is not actually required to work it the employer must pay them for it.
  2. Non-guaranteed overtime: The employer does not have to provide overtime but if it is provided then the employee is required to work it.
  3. Voluntary overtime: Where an employee cannot be required to work it, and the employer does not have to provide it.

Holiday pay implications

Employers will have struggled to ignore the raft of case law on holiday pay over the last couple of years. The current position is that overtime (even voluntary overtime that is sufficiently regular and settled) must be taken into account when calculating holiday pay entitlement for periods of holiday following the period where overtime was worked.

The reasoning behind this principle is that the courts require employers to enable their employees to take their Working Time Directive annual leave entitlement (which has roots in health and safety, amongst other factors) and not disincentivise them from doing do.

If the employee is reluctant to take holiday due to financial implications of doing so – for example because they have no opportunity to earn overtime payments – then this could result in a claim for the underpayments.

The fact that overtime payments need to be factored in – when calculating holiday pay for holidays taken during subsequent pay periods – may also mean that employers should think carefully about whether there is actually a business need to insist on overtime worked in the run-up to Christmas.

The overtime bills will be high, as will the holiday pay bill for annual leave taken at Christmas or early in the new year.

Family-friendly considerations

There is, quite rightly, an increased emphasis on work-life balance and mental health in recent times. Employers should be mindful of the social and moral implications of insisting that employees work overtime at Christmas, but also be aware that some individuals may be financially reliant on it being offered – particularly if this has been the case in previous years.

With schools closed over the festive period this also poses a challenge for parents who may be less able to work overtime if they do not have access to childcare. A policy of insisting on overtime being worked by all employees could cause a disadvantage to this category of employee, which, in turn, could lead to discrimination claims.

An employer insisting on overtime being worked across the board should be comfortable that they are able to show there were clear business needs for this – and no less discriminatory ways of reasonably achieving those aims.

Where possible it would be best practice to offer overtime – rather than insist that it is worked – and, where this process is adopted, ensure that overtime is offered fairly to all.

Religion and beliefs

Finally, remember that some individuals will have a strong preference to avoid working over Christmas due to religious reasons. Conversely, some individuals who do not celebrate Christmas may be very happy to earn some extra overtime pay during this period.

It is important that no assumptions are made in relation to religion and belief, again if possible, best practice would be to offer rather than require that overtime be worked.

This post first appeared in People Management HERE

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Author: Nina Robinson

Director, ESP Law Ltd

Nina is an accomplished employment solicitor with over 10 years’ post-qualified experience at leading UK law firms. Nina initially qualified as a corporate solicitor at Addleshaw Goddard and since 2006 practised employment law exclusively, providing advice to employer customers at both DAC Beachcroft and Ward Hadaway Solicitors. Nina has experience of advising a varied portfolio of employer customers, including retail and restaurant groups, financial services and media industry customers on all employment issues.

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