Should employers offer time in lieu if employees don't have contracted overtime payments?Posted in : Seamus Says - Employment Law Discussion on 1 March 2019
Q: Should an employer be offering time in lieu if they do not have contracted overtime payments, or not if you stay within the 48-hour maximum?
Seamus: Usually, the contract of employment will set out what the position is on that. A lot of contracts will say, "We will offer you employment . . ." So, say they're contracted to 40 hours. There's some additional overtime there. The contract might say, "If we give you overtime, we don't pay an enhanced rate. We just pay it at the same amount". Sometimes it will be an enhancement to try and entice people to work the overtime.
But sometimes people play it off in terms of toil and say it's time in lieu of notice instead of payment. It depends on what the contract says. Where there's nothing in place at all, I suppose you do have to be conscious of the working time regulations and the 48-hour working week.
Scott: Certainly, if you're doing the average, that's an average over, from memory, 17 weeks, isn't it?
Seamus: Seventeen, yes.
Scott: Unless it's changed by collective agreement. So, in that particular one there, you've got to make sure you don't average over 48 hours, but you can do more in 48 and then less during that period. It's only average.
For most people, you don't want over 48 hours. For many people you get salary. You may be expected to do additional work. You're not going to get paid for it. You're not going to get time off. It comes with the job. It's just the way it is. So long as, I suppose, you're not falling below the national minimum wage, there's probably going to be no claim for the vast majority of people. It just comes with the territory.
Seamus: I agree.
More on Working Time & Leave
- Can we insist employees take unused annual leave or should they be allowed to carry it forward due to COVID-19?
- Do we have to permit a request to cancel pre-booked annual leave due to lockdown?
- Holidays and Coronavirus – Carryover of Leave
- Chalimoniuk v Transkol Limited and FN Transport Limited 
- Payment for Internal Training of Apprentices – How Do I Handle It?
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.