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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 31300
Experience:  Over 5 years in practice
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I am an assistant restaurant manager working in a private member

Customer Question

I am an assistant restaurant manager working in a private member club in London.

I am regularly asked to work overtime (I accrued 40 lieu days in four years) ,the company is not happy to pay for extra time so my contract mention the following regarding extra hours or days;

" you may occasionally need to work flexible or longer hours for which you ' may' be given time off in lieu"

The wording ' may ' gives me more concern about wether this is going to happend or not.

No formal record of TOIL ( time off in lieu) is kept or signed regularly, so I do not have any evidende to show that I actually worked extra time or days.

The contract does not mention any particular term or condition, no handbook was ever provided that could contain any policy about TOIL ( time off in lieu) or information about how many lieu days you may accumulate in one year or when the employee is allowed to effectively take them .

Only verbally the line manager stated that lieu days will be accrued and only after my resignation ,the company would continue to pay me after I terminate my contract , that could mean that if I do not resign for another 10 years I will accumulate hundreds of lieu days ,obviously that appear to me very unfair and very unlikely that the company will ever pay after years of accrued TOIL not formally recorded or aknowledge.

Also how could I ever claim something only after my resignation?

Only an excel document spreadsheet is updated but not shared ,counter signed or made available to employees, also lieu days are recorded as holidays and therefor mixed with the holiday allowance.

In other occasion I witnessed ex employees struggling to get paid in full or not paid at all.

I definitely start to have reason to believe that the company rely on not paying TOIL in any form as the lack of evidence , terms and agreements in the hand of the employee allow the company to get away with it.

You understand that confronting the company regarding unruled TOIL could put me into risk of dealing with constructive dismissal if I decide to do that.

So I ask you suggestions In order to obtain a fair and ruled TOIL without creating conflict with the company.

Regards, Alex
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. There is actually no legal right to receive time off in lieu (TOIL) and this is something left at the employer's discretion. It is in effect treated as overtime and as there is also no right to paid overtime, whether you get paid for TOIL owing at the time of termination is something that depends on your contract, a workplace policy, or whether it has been consistently done over time with other employees.

The Government simply confirms that the terms regarding TOIL are effectively left to the employee and employer to negotiate:

Further confirmation of your rights to TOIL and that it is not a guaranteed payment (unless overall you are getting less than the National Minimum Wage) can be found here:

So unless there was some contractual right that entitled you to payment for accrued TOIL, it would be rather difficult to argue that point and a constructive dismissal claim may not actually succeed (such claims are traditionally rather difficult to win anyway).

Ben Jones :

Of course none of the above would prevent you from discussing this with the employer and negotiating but if they are adamant that the current rules stand, then unless you can show that some of the above apply you will be in a difficult position to press for this without potentially creating conflict

Ben Jones :

Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?

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