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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9358
Experience:  I have been practising for 30 years.
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A recent member of staff has recently been made redundant.

Resolved Question:

a recent member of staff has recently been made redundant. she has now submitted an overtime claim in excess of 1000 hours going back 5 years. what are the legal implication of this claim.
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
Was it agreed that the member of staff would get paid for overtime?Is it documented in any contract?Why was this not paid, if it was due to be paid, over the years?Do you accept that she should have been paid for this overtime even though this has come out of the blue?If you can explain the situation in detail that would be useful. Thank you
Customer: replied 1 year ago.
no agreement in place as she was an operations manager of multiple sites
no
never claimed or intimated
no, she was paid in excess of 60k per annum for this senior position
just been made redundant as business is struggleing and I have taken it upon myself as the owner to do this job to save money. This has come out of the blue.
Customer: replied 1 year ago.
first time i have been on your site, are you waiting for a response from me
Expert:  F E Smith replied 1 year ago.
Whether she can claim this money or not comes down to whether there was any agreement that she would get paid either an extra rate of for overtime and whether she would actually get paid for overtime at all.It is usual for a senior position like this to require people to work extra hours without any kind of overtime payment premium rate payment.The fact that she may have been an operations manager of multiple sites does not mean that there should not have been a contract. If she had asked for a contract you are under a duty to give her one but as there is one, it comes down to what was agreed verbally between you and what you can prove and what she can prove if ever this matter gets to court or tribunal.In the absence of any paperwork but says she would get paid for overtime either at the standard rate or premium rate, it comes down to her word against the employers and it would be decided on the balance of probabilities whether he was entitled to overtime payment either at the normal rate premium rate. Because of the level of salary and the practice for high profile positions like this whereby such members of staff do not get paid for overtime, it is unlikely that her claim would succeed.There is nothing to stop you bringing the claim which you will have to deal with but just because he brings it does not necessarily mean that she would be successful. Based upon the facts you have recounted, I think it unlikely that she would succeed.Can I clarify anything for you?Please don’t forget to rate the service positive, it is an important part of the process by which experts get paid.Best wishesFES
Customer: replied 1 year ago.
sorry I think I misled you. she does have a contract, but without an overtime clause.
Customer: replied 1 year ago.
the fact that she has never claimed in 5 years, doesn't this imply that there was no agreement to pay overtime
Expert:  F E Smith replied 1 year ago.
Thank you. If there is no overtime clause, then she doesn’t get paid for overtime.What you might want to do for future employees is modify the contract so that it states specifically there is no payment made for overtime.Whether she would be entitled to payment for this in view of the missing clause in the contract would come down to whether you asked her to do the overtime and whether she did it on the expectation of payment. Matters like this are always decided on the balance of probabilities because the court has to decide one way or the other.In my opinion, because she has waited 5 years, she is now clutching at straws to try to extract the maximum amount of money from you as possible without there ever actually having been an agreement that overtime would be paid or, importantly, without her ever having had an expectation. After all, it would not be normal for someone to work overtime and then wait 5 years to be paid! It doesn’t change my answer.If she takes the matter to court, the worst that can happen is that you have to pay the money. I would not be paying up quickly
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Customer: replied 1 year ago.
Thank you, ***** ***** a lot more confident now. Much appreciated.
Regards
Pete