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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48202
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I left my previous employment a few weeks ago. During my time

Customer Question

I left my previous employment a few weeks ago. During my time with the company I worked almost 100 hours of overtime and was told I would receive TOIL but when I left I put in a claim for the money as I could not take the TOIL when I was leaving. The company have now said no one in management was aware I was working an extra hour each day and am not due payment. They have "investigated" and have come back saying there is no evidence to support this despite the fact there are receipts printed from the tills each morning at 8 am (my start time was 9am). They have advised that as my boss says she was unaware I was working extra, despite the fact I was trained in someone else's role to cover staff shortages at another branch, so its my word against hers and they have sided with her and I have lost out.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello what did your contract say about TOIL?
Customer: replied 1 year ago.
Its says that overtime is paid at time and a half but a local decision can be made to give TOIL instead which is what I was advised was the case at my branch
Expert:  Ben Jones replied 1 year ago.
Thank you. Does it say anything about what happens to TOIL in the event you leave and there is some of it outstanding?
Customer: replied 1 year ago.
No there is no mention of what happens when an employee leaves. There is also nothing to advise if there is a limit on when this should be used or changed to a claim for overtime.
Expert:  Ben Jones replied 1 year ago.
Thank you. There is actually some case law on this as it is an issue which has been contested formally in the past. When overtime is worked by an employee there are generally a couple of options available to the employer to deal with it: get overtime pay or be given TOIL. If you get TOIL and the contract states that you should take this time before you leave then that is what you must do to be entitled to it. Alternatively, the contract may state that you will get remunerated for any outstanding TOIL and that is that should happen in that event. However, there are also times when the contract says nothing on the subject and this is where the specific case law I mention will come into play and decide your legal rights. This is your basic legal position. I have more detailed advice for you in terms of the actual case and the decision that came out of it, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Hi Ben.I still feel like I haven't got anywhere with this. The company's stance is that as my boss now says she was not aware that I was working overtime it was not agreed so therefore I am not due payment. I was trained in a roll outside my normal duties and there have been many dicey ions since regarding the times the receipts were printed in the morning so she was well aware of the extra hours. The company are treating it as a he's says/she says matter and I am always going to lose. They are a Plc and think that they can throw thier weight around and they won't be challenged but I am looking to take this as far as possible. Thanks
Expert:  Ben Jones replied 1 year ago.
Thank you. The relevant case is Vision Events v Paterson, decided a couple of years ago in the Employment Appeals Tribunal. Unfortunately, it decided that where there is no specific mention in the contract on what happens with accrued TOIL on termination, it would be assumed that no such right existed so the employee can only expect payments for accrued TOIL either if they work the time before they leave or is there is a specific clause in the contract entitling them to be paid for them in termination. For more detailed explanation of this please see here: http://businessdatabase.indicator.co.uk/business_advice_directory/articles/termination/how_to_avoid_toil_and_trouble_on_termination/UKTAPSAR_EU16070301?q=
Customer: replied 1 year ago.
Hi Ben,What if the contact states that overtime will be paid at time and a half but TOIL is a local agreement. My contract says that payment for overtime is due upon leaving the company if a claim is made (which it was) so then surely this would extend to the local TOIL agreement also?thanks
Expert:  Ben Jones replied 1 year ago.
Not automatically. Just because a term applies to overtime payments does not automatically mean it also applies to TOIL if that is applied instead. Overtime payments and TOIL are technically two separate things. So you are certainly able to try and ague this point but if they refuse to admit it applies then the only way to test this is in tribunal and as you can see it does not always go in the employee's favour. What you can do is initiate ACAS conciliation. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.