There are a number of issues to take into consideration when looking at your working hours. While there is obviously a need to abide by your working contract, there are also working regulations which supersede any terms of your contract. It is also worth remembering that employers have a legal and moral obligation to the “health and well-being” of their employees. Failure to uphold these obligations could lead to legal action and, in the event of injury/illness, personal injury compensation.

There are numerous occasions where “common sense” comes into play but there are also various situations where you need to ensure your health and well-being.

Reasons to question your working hours

There are a number of reasons why you may feel you are working too many hours, even if they are within your contracted hours. It is important to note that just because you were working within your contracted hours it does not automatically mean it is acceptable. You may question your working hours if:-

• Demands on your working day are simply unachievable
• You work excessive overtime, above and beyond your contracted obligation
• Working more than 48-hour in an average week, in breach of working time regulations
• Work demands are causing problems with your mental/physical well-being

There are also specific rules and regulations regarding the working hours of those under 18. These include:-

• Statutory limit of no more than 40 hours a week/8 hours a day
• No infringement on training time/further education
• Limits on the time of day those under 18 can work, normally limited to before 10 PM and after 6 AM

As ever, there are certain scenarios where there is a degree of flexibility. One such scenario would be being asked to work one-off additional hours, only when nobody aged 18 or over was available.

It is very important to know how to calculate your working hours and to be aware of your rights and the obligations of your employer. In the majority of cases, there is give-and-take between employers and employees. However, even this kind of arrangement does not reduce your legal protections.

Protecting your physical/mental well-being

Before we consider the options available if you are working excessive hours, we will take a look at the regulations covering mental and physical well-being.

All employers have a legal obligation to ensure the well-being and health of all of their employees. This takes precedent above any contractual obligations and even other regulatory protections. Failure to protect the health/well-being of an employee could very easily land an employer in court, with employees seeking compensation.

If you believe that your physical/mental well-being is at risk there are numerous options:-

• Consult your GP so that your issues are documented – you can use this as evidence during discussions with your employer
• Ensure that your employer is not placing pressure on you to work excessive hours
• If it is uncomfortable to speak with your immediate manager, there are HR departments, unconnected company officials and even union representatives that you can confide in
• Your employer is legally obliged to make any “reasonable adjustments” if you have physical/mental disabilities or long-term health issues

In the majority of cases these issues can be discussed and addressed in an amicable manner. Unfortunately, if your employer is unwilling or unable to act upon your suggestions, you may need to take out a formal grievance against an individual or your employer. Employment regulations can change from time to time and it is advisable to approach an expert in this area or, where possible, your workplace union.

Respecting the 48-hour average working week

When researching issues surrounding employment regulations and employment law, you will often hear reference to the 48-hour average working week. This average is calculated over a 17 week period which offers a degree of flexibility to employers and employees. This is covered by the Working Time Regulations which were introduced by the EU but will continue to be respected by the UK government post Brexit, for the time being at least.

Legally, this prevents employers from placing pressure upon their employees to work more than 48 hours in an average week. As mentioned above, these regulations supersede any elements of your contract although you can opt out of these regulations if willing and able to work additional hours. The 48-hour average working week is the default position, whether or not you have a written or an initial verbal employment contract with your employer.

There are specific industries where it is impossible to guarantee the 48-hour average working week. However, in general you would need to opt out of these regulations to work additional hours.

Cancelling your opt out agreement

Unfortunately, some employees are of the opinion that once they sign an opt-out agreement they can no longer revert back to the 48-hour working week protection. This is simply untrue. However, there are some conditions to be aware of:-

• You can cancel this arrangement at any time, with a minimum seven days written notice to your employer
• In some circumstances this cancellation notice can be up to 3 months, where your employer needs additional notice to make alternative arrangements
• Your employer cannot block your intention to cancel your opt out agreement – even if specifically mentioned in your contract of employment
• Once your opt-out cancellation notice period has expired, you will immediately revert back to a maximum 48-hour average working week
• Employees paid by the hour would obviously see a reduction in their remuneration
• Those paid a standard salary, including overtime, may well incur a reduction due to their reduced working week

The issue regarding reduced income is obvious as there also needs to be a degree of protection for employers. So, the main issue to remember is your legal obligation to opt out of extended hours whether or not you are seemingly contractually/verbally obliged to continue. If for some reason your employer was to “treat you differently” after you cancelled your opt out arrangement, this is unlawful and could lead to legal action.

Checking your employment contract

In this instance, where we use the word “contract” this can be both written and verbal. Once you accept a position with a company then you have a verbal contract, which should in due course be followed up with a written contract. So, whether employment contracts are written or verbal in the early days, the protection is the same. The terms of your employment should clearly define:-

• Your standard working week
• Number of hours work your employer has to give you
• Shift patterns

One of the more confusing elements of verbal/written agreements is the fact that many elements may be defined in different places. So, even though you can request a written statement of your terms and conditions, prior to receiving your full contract, issues such as working hours might be defined elsewhere. This could be:-

• In additional correspondence
• Via an email
• Text message
• Formal meeting notes

Your employer is still legally obliged to confirm your terms and conditions of employment, but they may point to additional communication for various elements.

Contractual, legal and moral obligations surrounding overtime

The situation regarding overtime is straightforward. If overtime is stipulated in your contract, you are obliged to honour this, if not, then you are not legally obliged to work additional hours. That said, the legal protections regarding shift patterns, etc will still supersede any elements of your working agreement.

Traditionally, many people will receive an enhanced hourly rate when carrying out any overtime, although this is not a legal obligation. If, for example, additional overtime would reduce your earnings to less than the minimum wage, you would not be obliged to carry out such work. As you can see, even something as straightforward as confirming your working hours is not a simple as many might assume.

Overtime and employment contracts

At first glance, the situation regarding employment contracts and overtime seems to be skewed towards employers. Legally, they are able to add in fairly vague contractual obligations which commit you to “a reasonable amount of overtime from time to time”. This is perhaps not as onerous and vague as it appears at first glance, but it is certainly not conducive to strong employer/employee relations. This type of contractual insertion may cover:-

• Additional working hours required to fulfil business commitments
• Specific hours required to complete your work obligations

In reality, informal/formal discussions between employers and employees are commonplace to reach a mutually acceptable arrangement. There is no point in employees refusing to work overtime, for the good of the business, while there is no point in employers pushing employees too hard. That said the carrot of additional income can often be enough for some employees!

Different types of overtime

It may surprise you to learn that there are two specific types of overtime, guaranteed compulsory overtime and non-guaranteed overtime.

Guaranteed compulsory overtime

This is an arrangement whereby your employer is obliged to offer you overtime which you are then obliged to accept and complete.

Non-guaranteed overtime

This is in effect a catch-all condition. Your employer is not obliged to offer you any overtime but if they do, you must accept and work the additional hours.

If you are contractually obliged to work overtime, all within the various regulatory and legal parameters, your employer can take disciplinary action if you refused to do so. While this may seem somewhat skewed towards the employer, it is worth remembering that business owners will already have factored in expected working hours to meet customer needs. If for some reason these working hours were suddenly reduced this could have a detrimental impact on the business.

Avoiding excessive working hours

It will surprise many to learn that employment contractual obligations can be fairly vague, as we have detailed above. That said this does not stop you from asking your employer for clarification of for example “reasonable overtime”. Alternatively, this information should be available in staff handbooks and company working policies. Obviously, it is very important to know what you are letting yourself in for!

If we put aside the contractual obligations and legal niceties, above and beyond any contract, we have the Working Time Regulations. This takes us back to the 48-hour average working week which is a fundamental protection for all employees. If any additional overtime, whether contracted or not, were to take you over the 48-hour average working week limit, you are not obliged to carry out such work. That said, your employer may request that you opt out of the 48-hour limit and you may agree to do so.

Pressurising an employee to opt-out of legal protections and work additional hours is illegal. Those employers found doing so could face serious legal and financial consequences. In reality, employers can place subtle pressure on employees to follow their lead. This can lead to a very uncomfortable situation which is detrimental to long-term employer/employee relations.

Non-contracted overtime

It is unclear why any employer would add such a condition, but part of your employment contract may confirm that you “might be offered overtime”. It’s the fact that it is part of your employment contract that leads many to assume it is an obligation rather than an option. The following points will clarify this situation:-

• You are not obliged to work any overtime which is offered in this situation
• Your employer is unable to reduce your remuneration if you reject the offer

There are occasions where the theoretical world and the real world can collide, this is one such occasion. For example an employer may ask their employees to work additional hours because of:-

• Unexpected staff shortages
  A sudden increase in workload

At the end of the day, what is good for the business in the long term is good for all employees. In the real world we would likely see a degree of negotiation and a breakout of common sense. Hopefully!

Formal and informal discussions may allow the employer to spread the additional workload more evenly. Indeed, there may be scenarios where the often significant additional cost of overtime can be reduced by taking on one or more additional members of staff. In this scenario, there are obvious long-term implications to consider.

Unfortunately, those who have been in employment with a company less than two years have limited protection. If they refuse to carry out overtime they may be dismissed.

Discrimination in the workplace

There are situations which are protected under discrimination rights which have relevance to unwelcome/unachievable overtime hours. For example your employer’s actions may be deemed discriminatory if they force you into overtime where:-

• You have care responsibilities outside of the workplace, e.g. children, parents, etc
• Your religious commitments make this impossible
• You have a disability/health issues

It would be uncommon for an employer to ask an employee to work overtime, unless vitally important, where they have such issues.

Requesting a reduction in your workload

There are occasions where an employee looking to reduce their working hours/workload might make a formal representation to their employer. Some of the more common suggestions include:-

• A move to more flexible working hours
• Alternative ways in reducing your workload
• Additional holidays in lieu of overtime
• Formal action where your employer is being unfair/potentially negligent

The first step in reducing your workload would be an informal meeting with your manager/employer to convey your concerns. It is very important to prepare your arguments because there are very few employers who would voluntarily reduce your hours, upon which they may be dependent. Rather than keeping everything in your head, you should make a note of:-

• Your traditional working day
• Formally contracted and uncontracted hours/work
• Importance of each task
• Duration of each task
• Contracted overtime compared to actual overtime
• Impact excessive working hours have on your health/well-being

In many cases an informal meeting would allow various views to be aired and a compromise to be reached. Some compromises might include:-

• Additional training to help with workload
• The streamlining of various processes
• Greater use of modern technology

These all sound fairly straightforward, but the individual and cumulative impact can be huge. In some circumstances you may be able to reach an agreement whereby your job description is amended and standard remuneration increased. It is important to note that any such changes would be set in stone and sometimes difficult to reverse.

Forced to work excessive hours

It is very difficult to appreciate the balance between employee rights, employer rights and the long-term well-being of a business. That said there are firm regulations in place to protect the health and well-being of employees. Where an agreement cannot be reached, the only option may be to make a formal complaint about your manager/employer.

In the past we have seen this lead to accusations of constructive dismissal, which can attract huge fines/compensation. In order to prove such actions, you need to demonstrate knowledge of which specific terms of your contract were breached by your employer. An employment tribunal would look at the facts and figures in the cold light of day with no bias. If you have a strong well-presented case then you have every chance of a successful prosecution.

Summary

There are many different issues to take into consideration where, whether voluntarily or under duress, you are working significant overtime hours. Balancing the needs of employees, employers and the long-term well-being of the business can be difficult. While legal action for unfair dismissal may sometimes be unavoidable, informal, formal and meetings involving third parties can often de-escalate difficult scenarios. In many cases there will be a degree of compromise required on both sides, obviously within the current employment regulations.