In early 2024, the Trades Union Congress (TUC) published a report stating that employers in the UK claimed £26 billion in free labour last year as a result of workers working overtime without pay. To put this into perspective, out of 60% of employees who work overtime in the UK, only about 20% get paid for their extra shifts.
If this report is anything to go by, it shows that working overtime without getting paid is a prevalent issue in the UK that won't go away until employees learn about their rights and relevant government bodies start enforcing stricter regulations. That said, if you are a victim of this clear exploitation and you want to know how you can claim back the money you are rightfully owed for your overtime shifts, then this article is tailored just for you. In addition, this article will also discuss:
Factors that could cause your employer to withhold payment for overtime
The legal framework surrounding overtime in the UK
Practical advice on how to prevent unpaid overtime
Understanding Overtime Rights
Unless it is specified in your employment contract, overtime pay is not automatically a legal requirement in the UK. In other words, if there is no written agreement between you and your employer regarding working beyond your standard work hours, then you are restricted to the maximum 48-hour work week explicitly stated by law.
If you are a UK employee working in sectors that require flexibility and may involve overtime, such as healthcare, hospitality, or retail, you must review your contract to understand the outlined provisions related to overtime. Some key provisions to look out for include:
Overtime payment: Check whether you will be compensated for extra hours worked with money or Time Off in Lieu (TOIL), where you get equivalent time off instead of extra pay.
Condition for overtime work: You should also look for information that clarifies whether overtime is mandatory or voluntary and under what circumstances it can be required or offered.
Overtime eligibility: Check if your role qualifies for overtime pay, especially in a managerial or supervisory position.
Top tip: One thing that we find people often forget is that your employer is required by law to ensure that your total pay during the extra shift doesn’t cause your overall earnings to go below the National Minimum Wage (NMW) or National Living Wage (NLW).
If it does, your employer is legally required to raise your wages to meet the NMW threshold. In other words, the law protects you by ensuring that even if you work additional hours, you should still earn at least the legal minimum wage for all your work hours.
Working Time Regulations
The Working Time Regulation 1998 is a government act that governs work time or hours in the UK. This act sets the maximum number of hours an employee in the UK can work per week. According to the WTR, employees working overtime or traditional hours cannot be compelled to work more than an average of 48 hours per week unless they voluntarily opt out of this limit. Employees can work more than 48 hours a week as long as the average weekly working hours over a rolling 17-week reference period do not exceed 48 hours.
The Working Time Regulations also specify what counts as working time and what doesn't. According to the legislation, working time is when an individual:
Travels to work sites or if travelling is part of their job duties.
Trains for the job
Performs tasks or duties related to their job.
Engages in preparation or clean-up activities that are necessary for their work.
In contrast, the legislation doesn't consider the following working time:
Time spent performing activities unrelated to the job
Scheduled rest periods that are not working hours
The regular journey between the workplace and home
Steps to Claim Unpaid Overtime
If you worked overtime, you are within your right to seek compensation for your extra shift. Therefore, this section will outline the steps to help you pursue this claim effectively.
1. Talk to Your Employer Informally
Talking to your employer directly is one of the quickest and least stressful ways to address unpaid overtime and other work-related issues. This approach is always preferred before resorting to legal action because it is possible that the issue is a result of administrative errors that have nothing to do with the employer directly. So, when you communicate directly with your boss or an HR person about the wage you're being owed, you allow them to investigate the issue and correct any discrepancies.
2. File a Grievance
If direct communication doesn't yield any favourable outcome, the next step is to file a formal grievance. This process involves collecting all relevant evidence, including the hours you worked and emails or texts from your boss asking you to arrive early, work late, or perform tasks outside your job description. Once you have gathered all relevant evidence, the next step is to follow your company's procedures for submitting a formal grievance.
In your grievance, you should give a detailed account of the unpaid overtime and accompany it with relevant evidence to support your claim. While filing a grievance doesn't automatically resolve the pay dispute, it does help escalate the matter internally and often compels the employer to take your claim more seriously.
3. Make a Claim to an Employment Tribunal
If the grievance process doesn’t yield any positive result, your last resort is to file a claim with the Employment Tribunal. The Employment Tribunal in the UK is an independent tribunal that rules on employment-related legal disputes such as unfair dismissal, discrimination in the workplace, unfair deduction, unpaid wages for work done during normal hours and overtime, redundancy issues, and breaches of employment contracts.
In the context of unpaid overtime, the tribunal presides over cases where employers:
Fail to pay for overtime
Do not meet minimum wage requirements after overtime is calculated
Breach of contractual agreements regarding working hours.
As an employee, if you are submitting an unpaid overtime claim to the tribunal, you would need to accompany your application with vital evidence that includes:
Timesheets and evidence of the hours worked
Payslips
Employment contracts
Email or written communication about the overtime.
Best Practices for Employees
To improve your chance of successfully claiming back unpaid overtime, whether in a current case or the future, you need to consider the following practices:
Keep Accurate Records
If you think that your employer owes you unpaid overtime and you want to prove it to the Employment Tribunal, vital evidence like the following will come in handy:
A logbook detailing your working hours
Your payslip which clearly shows that you haven’t been getting paid for your overtime work
Copies of emails, texts, or any other communication in which your employer demands that you work overtime or undertake duties outside your regular working hours
Written details of the overtime agreement you had with your employer
Seek Legal Advice
If you seek legal recourse to address unpaid overtime but don’t know your rights or how to proceed, then getting legal assistance can be the way to go. Employment solicitors, trade unions, and advisory agencies such as ACAS (Advisory, Conciliation, and Arbitration Service) are professionally trained, have experience and can provide advice throughout your unpaid overtime claim process. These professionals can also assist you in the settlement agreement and determining the amount of compensation you may be entitled to.
Legal and Regulatory Considerations
In the UK, employees' rights (including overtime pay rights) are protected by several key legislations. They include:
Employment Rights Act 1996
The Employment Rights Act of 1996 is an important piece of legislation in the UK that establishes many employment rights and safeguards for employees. Some of the provisions outlined in the legislation include:
Right to obtain a written statement stating their terms and conditions of employment within two months of beginning work.
Right not to be unfairly dismissed from their jobs.
Rights in the event of redundancy, including entitlement to notice periods, etc.
The right to get paid for work done. Employers' failure to pay wages, including unpaid overtime, constitutes a breach of contract, and they can be sued for it.
Right to request flexible working arrangements (assuming the employee has worked in the same company for at least 26 weeks).
National Minimum Wage Act.
The National Minimum Wage Act, implemented in 1998, is a UK government legislature that ensures workers are paid a minimum hourly wage, which is set by the government. As of 2024, the legislation stipulates that workers aged 21 and over be paid £11.44 as their minimum wage. In contrast, the minimum wage for employees aged 18 to 20 is set to £8.60, while apprentices and 16-17-year-old workers are entitled to getting paid £6.40 as their minimum wage.
The National Minimum Wage Act, in relation to overtime, posits that your employer will be in breach of the law if, after calculating your total pay (including overtime), your hourly earnings fall below the National Minimum Wage. This means that the National Minimum Wage Act ensures that workers receive fair pay, regardless of how many hours they work.
FAQs
What should I do if my employer refuses to pay my overtime?
You should address the issue privately with your employer or the company's HR person, then file a formal grievance. If neither option fixes the matter, you can file a claim with the Employment Tribunal.
How long do I have to claim unpaid overtime?
Employment tribunal unpaid wages claim should be filed within three months minus one day of the latest date of underpayment. If the problem is continuous, you may be eligible to recover up to two years of unpaid overtime.
Can I claim for unpaid overtime if I was paid a salary?
Yes, regular work hours are not the same as overtime work. So, if you earn a salary from your regular shift, you will still be entitled to overtime pay as long as your contract includes provisions for additional work beyond your contracted hours.
What happens if my employer says I am not entitled to overtime?
If your contract does not provide for overtime, your employer may not be legally required to pay for extra hours. However, if you wish to work an extra shift, you can make a written agreement with an employer. If your employer accepts, they are legally obligated to pay for services you render outside your standard working hours.
How much compensation can I get for unpaid overtime?
Unpaid overtime compensation varies according to the number of hours worked, the rate of pay, and if additional compensation is granted for stress or loss of earnings. In certain cases, Employment Tribunals may even award interest on unpaid wages.
Conclusion
Whether you are an employee seeking compensation or an employer managing payroll, when it comes to overtime, you must stay informed about the legislation surrounding overtime in the UK to prevent disputes and potential legal battles.
If you believe you are owed unpaid overtime and you want to resolve it legally, then don't hesitate to book a session with our employment solicitors at Lawhive today for professional guidance and assistance.