Overtime: How can employers protect themselves following the Federacion case?Posted in : Seamus Says - Employment Law Discussion on 1 March 2019
"As a Northern Ireland company, most of our staff work overtime. How can we protect ourselves in light of the recent Federacion case?"
Scott: I suppose it's the same thing. You keep the records. You prove that people haven't been working over 48 unless they've opted out and so on.
Seamus: Yeah. Keep your records. And that's anything from clocking in and out or requiring people at the end of the month to send through the overtime hours they did, whatever system you have in place within your company.
Scott: Your pay system will reflect it as well. It's better that you keep separate records if you're going to be having that.
Now, the downside is you go back to the GPS thing and people are saying, "You're watching me all the time". But hey, if you want rights, there's got to be a balance for employers and employees as well.
Seamus: There has to be a process as well, where the employer is aware of the hours that have been worked in overtime so that they can pay the staff accordingly, if they're not obliged under the contract just to complete it without payment. But you would expect the employers are keeping on top of that.
Also, just looking at the holiday aspect and the current position that you have to look at the normal working week, those records will help any employer stand over that.
Should we get our employees to sign something stating that they are openly wanting to work additional hours?
Scott: Okay. We have a follow-up here. "Should we get our employees to sign something that they are openly wanting to work extra or additional hours?"
Seamus: You would normally see something in the contract that would be reflective of . . . sometimes the contract of employment will say, "If overtime is offered, you have to work it". Sometimes it says that overtime is offered and you have a choice. It's back to the basics on holiday pay of voluntary overtime and required overtime and things like that. So, if it isn't in the contract, I think you might be looking to incorporate the terms into the contract itself.
Scott: There's no real need to put an agreement every time you have to work . . .
Scott: "I agree I'm going to work overtime". It's implied by the fact that you've done it.
Seamus: Yeah. I think it's just keeping the record and the employees knowing what happens when they do the overtime. Do they get paid? Do they get time in lieu of the overtime, or is it just expected that you'll do the overtime?
More on Working Time & Leave
- Parkview Care Ltd v Fenn 
- Cooke v Poundland Limited 
- If a part-time employee changes their days of work but remains on part-time hours, does this change their holiday entitlement?
- Holiday Pay for Bank Holidays during the Christmas Holiday Period
- Calculating pro-rata bank holiday entitlements for part-time staff
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.