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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 61714
Experience:  Qualified Solicitor
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We are a small company desperate to survive after a huge

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We are a small company desperate to survive after a huge downsizing and for the first time in her 5 years with us have asked an employee to come in over the weekend in order to complete an important presentation that was needed by the CEO for a meeting in Holland. On the Wednesday morning. She is Spanish.She had other commitments but and was upset that the CEO had copied me in on her response to him.I am helping in an HR role as the company having only 9 employees from over 80 at the peak.She asked to see me on my next day in and had discussed her contract with Unite of which she is a member.Our contract of employment (COE ) does say that in exceptional circumstances employees may be required to work weekends and some years ago the COE was amended in light of the Working Hours Directive saying that employees agreed not to working outside these hours if required.We are historically an IT based company offering B2B solutions and whilst during the Company’s 25 years existence, few if any staff have been required to exceed the 45 hours, in order to fulfil our contracts, in exceptional circumstances, we may need to be able to ask staff to exceed this.She says that when she signed her contact she did not understand the implications of this clause and Unite have advised her to have this clause removed. This clause is considered important for the sector. The wording in the contract does say what the employee can request to have the Working Hours Directive clause removed by giving 3 months notice in writing but to date this has never happened. Where do we stand as an employer if she requests this.If we do ask employees to work overtime/ weekends, do we have to pay for this or offer time off in lieu, if this is not not specified in the contract.We are working on what is effective Lyn a new start up in a 25 year old company and this negative attitude at this time when all hands are on deck to secure the companies future.We want to ensure we do nothing that will give her grounds for any legal action. The company has been like a large family giving great flexibility when able but now when the chips are down we need to know where we stand.With only 2 colleagues in the office with her, this negative attitude
Customer: replied 11 days ago.
Do not expect a response tonight

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

When you say the Working Hours Directive do you mean the limit of working 48 hours in a week?

Customer: replied 10 days ago.
Yes but she only works 9 to 5.30 and in 6 years this is the first occasion she has been asked to come in over a week-end which she was inable to do.

Ok that is not really related to the Working Time Regulations though. What is the wording of the clause in question?

Customer: replied 9 days ago.
I currently do not have access to the contract so will have to send it on Monday if that is okay

ok no worries

Customer: replied 7 days ago.
This is the wording in the contract and it is 5.2 that she wants to have removed as Unite suggested. She would never be affected by this but for someone who recently asked for a pay rise she is definitely not doing herself any favours.

We want to ensure that we give no grounds for recourse while at the same time trying to avoid the negative attitude she is bringing to the office.

5. Hours of Work

5.1 Normal working hours is 0900 until 1730, Monday to Friday, unless otherwise specified for all working days, with one-hour (unpaid) lunch break to be taken between 1200 and 1400 at your discretion. Operational requirements may well necessitate additional hours of work, including non-working days such as Saturday, Sunday and recognised Public Holidays and unless additional payments are specifically agreed and detailed in writing, no additional payments are made.

5.2 You agree that for the purposes of the Working Time Regulations 1998 (and any amendment or re-enactment thereof) any legislative provisions imposing a maximum number of average weekly working hours shall not apply to your employment. You may terminate the agreement contained in this Clause by giving the Company not less than three months’ notice in writing.

Thanks for that. According to Clause 5.1 you can indeed ask employees to work additional hours as and when needed, although it should only be in exceptional circumstances, rather than it becoming a regular thing. To be honest, we as lawyers, almost always have such clauses included as we never know when a case may come up which needs additional work and it is quite common for lawyers to work overnight and over the weekend, particularly in the corporate sector when a deadline for a transaction is looming.

 

We do not get paid overtime for that and your contract also says that no overtime is due so no extra pay is required. In fact, the law does not provide for automatic overtime pay and it will only happen if it is mentioned in the contract. However, you must ensure that based on the hours she has worked for the month and the pay that she received, she has received at least the minimum wage on average.

 

As to Clause 5.2, that relates to working more than an average of 48 hours a week, which is the legal limit. This clause serves to remove that limit, meaning that she could potentially be asked to work more than an average of 48 hours a week. However, it is her legal right to opt back into this limit and get that clause removed so you have to agree to it if that is what she wants and cannot penalise her for it. Do not that this won’t remove the rights under Clause 5.1 and she can still be asked to come in and work extra hours if needed, for no pay, as long as on average that does not result in her working more than 48h a week on average.

 

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Customer: replied 6 days ago.
Thank you for your detailed response. This is the first time we have been asked to remove it and of course we will if she does request but she is not endearing herself to the CEO who decides on pay rises and bonuses

Most welcome and all the best