Overtime clause?

[tanyalee]

Hello.

This what the contract says :The employee's normal hours are 30 per week. The employee will be required to be flexible with regard to X's care needs. The hours of work may vary due to the nature of X's changing needs.

This is the situation : The only other carer who can do the job has left, so the employer is pressing the remaining carer to do as many hours as possible to cover until a replacement is found. Asked to work from Friday last to this Thursday, which is 70 hours. Week before it was 50 hours. Week before that was 60. Next week will probably be asked to do 50 again.There is no end in sight at the moment.

Can the carer decline the extra hours? Admittedly it puts pressure on others, but if the carer wanted to do more than 30 she would have signed up for more in the beginning! At the moment she is working 10 hours over night and then coming back to care for a child all day. Not good for health.

Attempts at declining the extra hours meet with disapproval and such comments as ''You are letting down the team - we expected more of you - you know so and so can't do it because of HER committements -''and, the clincher,''It's in the contract''. Made to feel bad about not wanting to work all hours just to keep them in night carers.

So, what can be done? Jobs are hard to come by, and extra work should be a boon, but not in this circumstance where it is beginning to damage health.

[bluebottle]

Re: Overtime clause?

Hi Tanyalee and welcome to Legal Beagles.

Working hours are covered by the Working Time Regulations. In the first instance, contact the Arbitration, Conciliation and Advisory Service (ACAS), which is part of the Department for Business, Innovation and Skills. Their advice is free and impartial. Their website is at www.acas.org.uk. Their helpline telephone number is 08457 474747.

[tanyalee]

Re: Overtime clause?

Thanks for that, but that has been tried and they simply said to discuss the matter with the boss. Since she is the one making the rules, she is obviously not going to give up the pressure. That is why I am trying to get some definitive answers on here. I think it is criminal to ask someone to do 50+ hours a week over nights. Boss doesn't.

Can the words ''No I won't'' be used or not?

[bluebottle]

Re: Overtime clause?

If you are a member of a trade union, they can help you to resolve this.

The other route is health and safety at work. The question here would be, "What is the likelihood of a carer, who has worked excessively-long hours, making a mistake that would put the person being cared for or the health and safety of the carer at risk?" It might pay you to speak to your local environmental health department and ask their advice. If they cannot help you, they should be able to signpost you to the appropriate HSE Inspectorate

The Working Time Regulations permit a maximum of 48 hours in any period of seven days. There must also be a break of at least 11 hours between each shift. Workers are also entitled to two rest days in each period of seven days. I feel the boss in this matter is sailing close to the wind, legally. I will, however, ask those of our members who are experienced and trained in Employment Law to look in on this thread.

[leclerc]

Re: Overtime clause?

Just to add to what Bluebottle has said, you are working illegally if you have not opted out of the working time directive and are working more than 48 hours a week. If your employer is saying that you are ok, you should remind her that you are not opting out of the Working Time Directive and that when it comes up to 48 hours you will be stopping work since you are breaking the law.

[miliitant]

Re: Overtime clause?

your employer is breaking the law ,end off

as stated, the max working week is 48 hours unless you have signed the opt out of the working time directive. even with the opt out it is based over a 17 week period
you must have a break of 24 hours in any weekly shift pattern and an 10 hour break between shifts

even contractual overtime has to be reasonable, which is normally for the good of the compay for a one off occurance

QUOTE

This what the contract says :The employee's normal hours are 30 per week. The employee will be required to be flexible with regard to X's care needs. The hours of work may vary due to the nature of X's changing needs.


THAT IS NOT A CONTRACTUAL TERM FOR OVERTIME, IT IS AN IMPLIED TERM IN THE CONTRACT OF EMPLOYMENT

IT SAYS BE FLEXIBLE IN THE HOURS OF WORK

SAY START AT 6PM INSTEAD OF 2PM FOR EXAMPLE, YOUR CONTRACTED HOURS STAY THE SAME
NOT ENFORCED OVERTIME

PUT A LETTER INTO YOUR BOSS STATING YOU WILL NOT BE WORKING PAST THE 48 HOUR MAX WORKING WEEK AS BY THE WORKING TIME DIRECTIVE, YOU WILL NOT BE OPTING OUT EITHER

TO BE REASONABLE (IF YOU AGREE) YOU WILL STILL WORK UP TO BUT NOT PASS THE 48 MAX WORKING WEEK AND YOU REQUIRE YOUR DUTY ROTA IN ADVANCE UNTIL A REPLACEMENT CAN BE FOUND

LET ME KNOW HOW YOU GET ON AS THIS IS A CLEAR AND FUNDAMENTAL BREACH OF YOUR CONTRACT OF EMPLOYMENT AND CONSTRUCTIVE DISMISSAL WOULD APPLY

THIS WILL BE SUBJECT TO AN EMPLOYMENT TRIBUNAL AS WELL AS CONSTRUCTIVE DISMISSAL

THE ONLY EXCEPTION WOULD BE SEASONAL WORK OR IF YOU LIVED INN HOUSE AT YOUR PLACE OF EMPLOYMENT, EMERGENCY SERVICES OR ARMED FORCES

HOW LONG HAVE YOU WORKED FOR THIS COMPANY (IMPORTANT)

[tanyalee]

Re: Overtime clause?

Thanks Miliitant.

Adding up over the last 17 weeks, the hours average out at only 40pw, as this demand for more hours has only come about recently because of lack of staff. So can nothing be said until hours hit an average of 48pw?

Sorry, having a bit of trouble getting my head round this. The shifts are ten hours, so does that mean only four nights should be worked in a week?

Have worked there over three years.

[miliitant]

Re: Overtime clause?

NO, THE 48 HOURS A WEEK IS WORKED OUT OVER A 17 WEEK PERIOD

only if you have opted out of the working time directive

[CleverClogs]

Re: Overtime clause?

The employee will be required to be flexible with regard to X's care needs.

Are you a carer or a contortionist?

[bluebottle]

Re: Overtime clause?

Many thanks for looking in, Miliitant.