Workers are often attracted to the buzz of the hospitality sector – but whilst being lively and fun, jobs in the industry often involve longer hours and evening work. Hospitality workers are also among the most likely to work overtime, to meet the demands of servicing customers.
So it is worth being aware of new guidance published by ACAS (The Advisory, Conciliation and Arbitration Service). This provides employers with the latest advice on overtime.
In summary, there are different classes of overtime:
- voluntary – where there is no obligation on either side to offer or carry out overtime
- compulsory and guaranteed – where an employer is contractually obliged to offer and a worker is obliged to accept.
- compulsory but non-guaranteed – where an employer does not have to offer overtime, but if they do the worker must accept it.
The employment contract or staff handbook should clearly set out whether a member of staff is required to work overtime and whether it is compulsory. Should a worker who is obliged to work overtime refuse to do so, this could be viewed as a breach of the contract and a disciplinary matter.
Limits to overtime
Overtime is governed by the Working Time Regulations, which state that a worker:
- must not work more than 48 hours per week on average, though a worker may choose to “opt out”
- must be allowed at one day off each week or two days off in a fortnight
- should have 11 hours uninterrupted rest in a 24 hour period
- is given at least a 20 minute break if their shift lasts more than six hours.
Different rules apply for 16 and 17 year old workers who cannot work more than 8 hours per day or 40 hours per week. They cannot sign an opt -out agreement and must have two days off per week.
There is no legal right to receive an additional payment or be paid at a higher rate for any overtime worked. Again, the terms and conditions of employment should clearly state the position and what, if anything, will be paid for working additional hours. Some employers may offer a higher rate to incentivise staff to work overtime. But beware: whilst there may be no requirement for additional pay, a worker’s hourly rate must not fall below the National Minimum Wage.
Instead of paying overtime, employers may offer time off in lieu, which should be set out in writing, covering when leave can be taken and authorisation process. In this case both employer and worker should keep detailed records of overtime worked and additional time off.
Part time workers
Part time workers should not be treated less favourably than full time workers, so if a full time worker receives extra or an enhanced rate of pay for overtime, a part time worker should receive the same rate of pay after working the same amount of hours.
Unless the contract says differently, there is no obligation on an employer to pay a part time worker an overtime rate until they have worked the same amount of hours as their full time counterpart.
Some recent high profile cases in the courts led to the decision that all overtime worked should be included when calculating a worker’s statutory holiday pay entitlement. The only exception to this is overtime that is worked on a genuinely occasional and infrequent basis.
This applies to the 4 weeks annual leave required under European law, with UK workers entitled to an additional 1.6 weeks of leave by law and in some cases further holiday as part of their contract of employment.
As this has proved to be a complex area, and case specific, employers may be advised to seek advice as to how the court decisions impacts on their own organisation.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.