Overtime

Case ref: 1.2/ March 2004

Summary of case

A group of members work overtime at the weekends. There were concerns that on occasions when the computer systems break down the employer may send them home and not pay salary for the full period of work specified by management beforehand.

Advice requested

What legal redress do members have if members are not paid for the period of time that they have been asked to work?

Key advice provided by Thompsons

Thompsons advised that in the circumstances described members were entitled to be paid for the full period of time they had previously been expected to work. The key extract from the advice letters reads: - 

"The essential obligation upon an employer is to pay remuneration under the contract. It matters not whether work is available for your members to do. Accordingly if your members attend work in accordance with their obligations to perform duties (whether on overtime working or not) then in my opinion they are entitled to be paid.

"An employer has no legal entitlement to lay off workers merely because work is not available. If a lay off occurs the employer may well not be able to provide work to do but that does not absolve him of his obligation to pay remuneration. In my view a failure to pay remuneration in these circumstances gives grounds for a claim in the Employment Tribunals to recover the amount due as an unlawful deduction from wages."

Legal department comment

The advice on this issue seems clear cut and should be used to challenge any employer who seeks to withhold wages in these circumstances.

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