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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49862
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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If you work as a shift worker daytime only and claim an

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Hi If you work as a shift worker daytime only and claim an allowance, can you claim a 2nd nightly allowance if you work overtime at night or should any extra hours worked overnight be claimed at an overtime rate?
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Do you have a contract? If so, what does it say about overtime hours and pay?
Customer: replied 1 year ago.
Yes I have a contract, my contract is to work a 37.5 hour week and call outs at overtime rate. We also have planned works at night which we use to be paid overtime but they now want to start paying us a nightly allowance
OK, thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Thanks for your patience. There is no automatic right to either an allowance or to overtime rates for working at night. Such rights are determined solely by your contract. So if your contract says that you get an allowance for working overtime hours, regardless of whether it is day or night, you ay certainly get these. There is nothing in law preventing your employer from giving you or preventing you from receiving an allowance for both daytime and night-time overtime. However, it is also entirely possible to be paid just an overtime rate rather than the allowance – all of this is entirely down to the employer. You should ensure that whatever the entitlement is, it is clearly defined in the contract so that there is no confusion as to what you get for working overtime, both in the days and in the nights. If you already have a contract in place but the employer is trying to amend that, then you will have separate rights as this will be dealt with as a change to your contractual terms and conditions. This is your basic legal position. I have more detailed advice for you in terms of the rights you have if the employer is trying to change your contract, 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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Thank you. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:· Receiving the employee’s express consent to the changes.· Forcefully introducing the changes (called 'unilateral change of contract').· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms. If the changes are introduced without the employee's consent, then the following options are available: 1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance. 2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions. 3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply. Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.