Getting out of overtime without getting sacked?

[dj9928]

I've been looking for my contract but have been unable to find it so this is coming of the top of my head.

My contract states along the lines of

"You will be required to work a reasonable amount of overtime as and when required"

I have refused in the past and been marched into the office and reminded of my contract, I have been working there a year now, we do 43 hours basic which is more than enough for me, and £6.20 doesn't exactly entice me to do overtime. I have missed kids nativity plays and other family engagements over this overtime, they do not take no for an answer.

Some weeks there is no over time, some weeks there is 3-4 nights but its a hell of a struggle because this job was just a port in a storm when I was made redundant and if truth be told I'd rather not be there at all.

So is there anything I can do? To be honest getting sacked would not bother me if I knew I would be entitled to claim benefits again as I was as well of on benefits as I am now working next to min wage.

[Eloise01]

Re: Getting out of overtime without getting sacked?

Unless it averages out over 48 hours and you aren't opted out, you can't refuse if it is in your contract.

I'm afraid that the only realistic answer is that if this was a port in a storm, find another port. If you are dismissed it is very likely you will be sanctioned.

[FlamingParrot]

Re: Getting out of overtime without getting sacked?

Things may have changed since then, but I was able to claim benefits when I got sacked for alleged Gross Misconduct, I told the JC I was submitting a claim for unfair dismissal - which was the truth but I had no proof at the time, the ET form was submitted online literally minutes before midnight on the night the 3 months expired. I didn't do it myself, it was my solicitor in case you were wondering.

It can be harder if you resign. A friend of mine resigned, then took on some short term temp work and when this ended, he was able to claim without any problems.

[leclerc]

Re: Getting out of overtime without getting sacked?

I was sacked for Gross Misconduct and was able to apply for JSA and got that. That was in 2009 so unless something has changed in that regards then OP may be eligible for JSA. To be honest, I told them straight out I had been sacked rather than voluntarily giving up my job.(just adding onto what FP has said).

[FORCEOFONE]

Re: Getting out of overtime without getting sacked?

"You will be required to work a reasonable amount of overtime as and when required"

My take on this will be slightly different. The contractual implied term states that you will be required to work a reasonable amount of overtime. Most contracts have that clause, but it will be reasonable with advance notice, not on the spur to cover staff shortages as an example.

Read the term again, it is very clever in the way it is worded, you will be required, not you must do compulsory overtime.

Overtime to meet a rush unexpected order at short notice will be compulsory, no matter what is in the contract as it will be seen as beneficial to both the employer and employee

Equality and family issues are also relevant as long as you have completed your normal contractual hours

As with all requests, it is what an Employment Tribunal will decide as a reasonable request.

[Eloise01]

Re: Getting out of overtime without getting sacked?

"You will be required to work a reasonable amount of overtime as and when required"

My take on this will be slightly different. The contractual implied term states that you will be required to work a reasonable amount of overtime. Most contracts have that clause, but it will be reasonable with advance notice, not on the spur to cover staff shortages as an example.

Read the term again, it is very clever in the way it is worded, you will be required, not you must do compulsory overtime.

Overtime to meet a rush unexpected order at short notice will be compulsory, no matter what is in the contract as it will be seen as beneficial to both the employer and employee

Equality and family issues are also relevant as long as you have completed your normal contractual hours

As with all requests, it is what an Employment Tribunal will decide as a reasonable request.

I am not entirely sure how you define a requirement, but a requirement is something that you must do. It does not stipulate anything other than that, and so there is no reason to begin to assume anything other than what it says. "Equality and family issues" are only relevant if the OP has complied with the law and sought relevant exceptions - such as a flexible working request for parental responsibility. Such requests are not about "I would like to be at my kids nativity play" - they are requests for permanant contractual changes; and do not apply for other "family commitments". They are not about "quality of life" but about other responsibilities. Unfortunately there is no right to "quality of life" as such.


In relation to benefit sanctions, a lot has changed since 2009, and sanctions are pursued much more rigourously than in former times. And specifically to deter people who might decide that they are as well off on benefits as they are working. I would still advise that the safest option is to find alternative employment, although FlamingParots suggestion of moving to a temporary assignment may provide more options.

[dj9928]

Re: Getting out of overtime without getting sacked?

I am not entirely sure how you define a requirement, but a requirement is something that you must do. It does not stipulate anything other than that, and so there is no reason to begin to assume anything other than what it says. "Equality and family issues" are only relevant if the OP has complied with the law and sought relevant exceptions - such as a flexible working request for parental responsibility. Such requests are not about "I would like to be at my kids nativity play" - they are requests for permanant contractual changes; and do not apply for other "family commitments". They are not about "quality of life" but about other responsibilities. Unfortunately there is no right to "quality of life" as such.


In relation to benefit sanctions, a lot has changed since 2009, and sanctions are pursued much more rigourously than in former times. And specifically to deter people who might decide that they are as well off on benefits as they are working. I would still advise that the safest option is to find alternative employment, although FlamingParots suggestion of moving to a temporary assignment may provide more options.

Believe you me I have already been looking for other employment since day 1 when I discovered we were working 43 hours basic instead of the 39 advertised, And since I discovered the £8.50 job I applied for didn't exist but this min wage job did, surly there has to be something illegal about advertising a job with different terms? Because I was unemployed at the time I was backed into a corner, I could not say no.

[wales01man]

Re: Getting out of overtime without getting sacked?

I think and Eloise can clarify this that the contract of employment is what matters not the wording of the advertthe £8.50 may be top rate after a period of time r for some other reason

[Eloise01]

Re: Getting out of overtime without getting sacked?

The trades descriptions act doesn't apply to job adverts - although Wales01man is probably right and it referred to a range or up to, or whatever. But even if there is was something "wrong" advertised, byt your own admission it is more than a year later so it will be a bit late to complain about it. How long have you worked there and when did you start? Have you signed the opt out? And it would help if you could find the actual wording although such wording is common enough in some employments and since it is contractual it is generally binding. I do apprecaite your point of view about being unable to say no to the job - but you are in the same bind now it would appear, since dismissal really is likely to lead to sanctions - they seem to sanction at the drop of a hat nowadays.

[FlamingParrot]

Re: Getting out of overtime without getting sacked?

For reference, the attached leaflet relates to JSA when you resign or get sacked:

It is important to remember that if a sanction is going to apply the Decision Maker has to prove the job was lost through misconduct – that is, that the action or failure amounted to misconduct and that this is why the job ended. These are two separate issues. It is possible to be guilty of misconduct, but actually to have lost the job for some other reason.

The Decision Maker will not impose a sanction without a reason for doing so. The standard of proof is the "balance of probabilities", though the guidance for Decision Makers does say "in misconduct cases the probability should be high because it may bring disgrace on the claimant. Before a sanction is imposed the Decision Maker should be substantially satisfied that the allegations which are made are well founded." This means that, if the person says one thing and the ex-employer says something different, a sanction can only apply if; in the opinion of the Decision Maker on the evidence and case law it is appropriate on a balance of probabilities.

[Eloise01]

Re: Getting out of overtime without getting sacked?

Hah! Love to know where that is being applied! Heard a story the other day about a guy getting sanctioned for being a day late signing on, having phoned in advance to tell them why he would be late - his partner was giving birth! But if the OP has a contract that says that they are required to work overtime and they refuse and are dismissed - that is breach of contract and the law is clear. I appreciate all the reason why the OP took the job, but the bottom line is that they have done, they have agreed to the contractual terms, and they have worked to them for over a year. It isn't my personal opinion that this is a great job - I would make it unlawful to work such hours anyway since 40+ hours a week in a time of high unemployment is immoral and there should be a maximum working week for all employees (I actaully also think there should be some attempt at "quality of life legislation"), but until things change and change significantly, this is the world we live in. Since the job is minimum wage, there surely must be jobs at the same wage but on less hours - or agency work - or something. This can't be the only job in town surely?

[dj9928]

Re: Getting out of overtime without getting sacked?

Hah! Love to know where that is being applied! Heard a story the other day about a guy getting sanctioned for being a day late signing on, having phoned in advance to tell them why he would be late - his partner was giving birth! But if the OP has a contract that says that they are required to work overtime and they refuse and are dismissed - that is breach of contract and the law is clear. I appreciate all the reason why the OP took the job, but the bottom line is that they have done, they have agreed to the contractual terms, and they have worked to them for over a year. It isn't my personal opinion that this is a great job - I would make it unlawful to work such hours anyway since 40+ hours a week in a time of high unemployment is immoral and there should be a maximum working week for all employees (I actaully also think there should be some attempt at "quality of life legislation"), but until things change and change significantly, this is the world we live in. Since the job is minimum wage, there surely must be jobs at the same wage but on less hours - or agency work - or something. This can't be the only job in town surely?

Right my contract says

"You will be expected to do overtime as and when required, and due to the nature of the business it may be short notice"

Hardly makes any odds now, but I never actually signed the contract, I was to return it signed but never bothered and they never came looking it. The only thing I signed was a sheet when going through the induction saying I had went through the induction. I started working there 30/4/12

As for getting another job, its a damn sight harder than you might think, I am trained in the construction industry but that is dead in the water, I have signed up to all the job sites I can think off, and in the past year I have had a grand total of 3 interviews, My inbox is full daily of jobs for teachers, nurse, carers, Managers, principles, all jobs that require previous experience.

[FORCEOFONE]

Re: Getting out of overtime without getting sacked?

Not signing your contract does not make one iota of difference. It can then be an implied contract and custom and practice will kick in. In other words, you have never objected so accepted those terms.

[Eloise01]

Re: Getting out of overtime without getting sacked?

Signing or not signing doesn't make any difference at all in law. Work and the contract is sealed! I am afraid that the contract is clear, so yes, you are obliged to work overtime including at short notice, and the only possible exception is if this takes you over the 48 hours average and you haven't opted out. Sorry, but breach of contract could indeed get you dismissed - possibly not the first time you refuse, but inevitably you will either toe the line or get dismissed.

I'd stay away from "caring jobs" anyway - they are often even worse than what you have.

Sorry, I don't see a way out here.

[dj9928]

Re: Getting out of overtime without getting sacked?

Signing or not signing doesn't make any difference at all in law. Work and the contract is sealed! I am afraid that the contract is clear, so yes, you are obliged to work overtime including at short notice, and the only possible exception is if this takes you over the 48 hours average and you haven't opted out. Sorry, but breach of contract could indeed get you dismissed - possibly not the first time you refuse, but inevitably you will either toe the line or get dismissed.

I'd stay away from "caring jobs" anyway - they are often even worse than what you have.

Sorry, I don't see a way out here.

Clean $hit or take $hit, great options.