The rules on working over contracted hours without pay

Employees’ contracted hours

These are set out in the employment contract. You must work your contracted hours, or you will be in breach of contract and potentially at risk of disciplinary proceedings.

You only need to work more than your contracted hours if your contract says so, and this is referred to as overtime. However, your contract may not stipulate the exact number of overtime hours you must work. It may instead include generic phrasing such as:

Reasonable overtime may, from time to time, be required in accordance with the needs of the business.

Maximum contracted hours per week

By law, an employee cannot work more than an average of 48 hours a week, unless either:

You agree to work more hours in writing, which you have signed
You do a job not covered by the law on working hours (sometimes known as the ‘working time regulations’)

The rules are different for under 18s. However, for most adults, this means your employer cannot ask you to work overtime if it means you will be working more than 48 hours that week – unless you have agreed to it in writing.

Payment for overtime

In the UK, there is no minimum statutory level of overtime pay. Subject to the information below, an employer does not have to pay for overtime, provided average pay for total hours worked does not fall below the National Minimum Wage.

Your employment contract should include details of any overtime pay rates. Alternatively, an employer should have a clear and accessible policy on how overtime pay is calculated, as well as how it is requested, authorised, and recorded.

If your contract or employee policy documents set out how overtime should be paid, the employer should pay you in accordance with that, otherwise they may be in breach of contract.

If you regularly work overtime, your overtime pay may need to be included when calculating holiday pay.

Can an employer force employees to work over contracted hours?

This will usually depend on what the contract of employment says.

If there is no contractual obligation for overtime, you cannot be forced to do it. If your contract requires some overtime, you will probably have to do it in accordance with the contract, provided you are not being asked to work more than 48 hours in a week.

Note that this only applies if you have not opted out of the 48-hours-a-week rule, and that it applies to your job.

If your contract requires overtime, but does not specify how it is paid (and there is nothing mentioned in policy documents) your employer may not have to pay you, provided pay for all hours worked (including overtime) does not fall below the National Minimum Wage.

On the other hand, an employer can stop you from working overtime unless your contract of employment guarantees a certain number of overtime hours.

Can you be dismissed or disciplined for refusing to work unpaid overtime?

This will also depend on which of the above situations you fall into. In addition, employers must not directly or indirectly discriminate against anyone when it comes to asking or insisting that an employee works overtime.

Indirect discrimination occurs when certain rules put certain employees at a disadvantage. For example, if an employer insists all overtime is worked on Sundays, this could be seen as discriminating against Christians.

Overtime and part-time workers

Employers should not treat part-time workers any less ‘favourably’ than full-time workers. However, employers normally only pay overtime for part-time employees if:

They work longer hours than their contracted hours, set out in their employment contract.
They work more than the set working hours of full-time staff, and the full-time employees would get extra pay for working the extra hours.
They work unsocial hours that full-time staff receive more pay for doing (e.g. at night)

Seeking legal advice about contracted working hours

Deciding whether you should or can work overtime will usually be clearly communicated by your employer, but there are always exceptions owing to individual circumstances.

If you need legal clarification of your situation, we can help. As a team of experienced employment law solicitors, we can provide tailored advice about your rights in relation to the working-time regulations and how you are affected by your contract of employment.

For an initial discussion, get in touch with the team today.

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