Hi all,

I work in the NHS, when we work overtime there are two methods of renumeration, we can take it as paid hours or take it as time off in lieu of overtime worked.

We are being told that if we do not use our toil within a certain time we lose the hours owed to us.

This to me is the same as saying "if you do not spend your overtime pay within a certain time we will take it back".

I can't see how they can legally do this as toil is a renumeration for hours worked, exactly the same as salary is, could this be a breach of contract?

Does anyone have any thoughts on this please.

Many thanks.

Whats the time period? If its a year then might be holiday year? Apr - Mar for example?

I think it's 3 months.

They cannot re take toil back.

In fact they cannot take ay hours off of you like annual leave you can roll over to the following year.

I'm a civil servant too and they tried this with us. Our union took them to tribunal and won

Thankyou, could you tell me what union did this?

The POA

Thanks i will contact unison.

They cannot re take toil back.

In fact they cannot take ay hours off of you like annual leave you can roll over to the following year.

I'm a civil servant too and they tried this with us. Our union took them to tribunal and won

Sorry, but yes, actually they can they do - legally. YOUR employer is not the same as THEIR employer and the circumstances are different. Your advice is based on what your employer does, under your contact of employment, based on some specific points of law. The OP is not the same as you. What the OPs employer can or can't do is not based on what yours can do.

The OP needs to consult their own union, and their own terms of contract .

Contracts will be different, granted but they will have similaritys.

Our government contract states yo can only carry over 70.2 hours of annual leave to the next year.

This was challenged by tribunal and judged to be unfair as it reduces the remuneration and working time directive. TOIL hours were also included.

So on that basis the situations are more or less the same.

I did not think toil was classed as annual leave as you earn it for overtime so it is in fact the same as payment, also the point is that they are taking it away after 3 months if not used, most people are not being granted toil within 3 months as we are short staffed!

Do you have any details of the tribunal as this could really help.

We are in the same predicament as you in regard that we build up toil hours and then struggle to take them for staffing issues.

Remember toil is hours you have ALREADY WORKED. So in effect they are saying take them or lose them. That means you could work for no pay.

That's the argument.

That's why it was put forward with the annual leave argument.

It was deemed at tribunal as unlawful even tho the contract said different. It comes under fairness and performance of contract and the work time directive.

Contact the POA

We will have to disagree then, because I think you will find that the OP will be losing a lot of time if they depend on this advice. The NHS is not the Prison Service, and the circumstances of the POAs case are very different.

It is, in fact, very simple for the OP. Do not "bank" hours. Use them. Or take the pay. The latter being an option very few people in public service have anyway. Three months is not an unreasonable amount of time to use up TOIL. There is no "end of year" deadline, as in the POA case, and that makes the critical difference. It was that deadline that made the system unfair, because people may have only worked the hours recently. That was actually the argument used. Had they had a rolling deadline, as the OPs employer is proposing, the tribunal would almost certainly have never happened.

The fundamental issue was the same.

Bank toil hours due to operational needs

Try to use toil hours but are refused cos staff shortages

Lose toil hours after 3 months

You state use toil hours or take the pay... You cant take the pay, you have to take the hours as leave.

The POA case was primarily with annual leave roll over but had toil hours as a secondary issue.

All I can say is to the op is contact your union. Our situation was very similar and you need to fight it. If we hadn't we would of lost it. We fought and won.

On a side note on your overtime, the POA have just won a case that you can claim holiday pay on your overtime hours

I'm sorry, but it doesn't work like that. The fundamental issue isn't the same. Your situation was intrinsically flawed as a policy. Had the employer been cleverer about it, they would have done it in exactly the same way as the OPs employer has. It is entirely reasonable and lawful (to say nothing of being very common) for the employer to have a policy which limits the banking of TOIL, providing that the employer does not make it impossible to take the TOIL. Of course, in the POA case, that is exactly what the employer did - made it impossible to take the leave and then removed it.

I do, however, agree that it is more likely that the union may be able to limit or mitigate the policy - assuming, of course, that they haven't agreed the policy!

The underlying problem in both cases is that the employers have depended on overtime to run basic services because they cannot or will not recruit sufficient staff, so the accumulation of massive amounts of TOIL simply makes it harder to deliver the service, not easier.

On a practical note, it seems like taking time off may be best - have you asked them to confirm when you can take the time off?

Thank you all for the input, i will find out if there is an agreement on removal of toil and also cotact unison because there is a policy which says toil should be paid if it cannot be taken for operational reasons.

my OH gets offered TOIL to be taken in the a/l period (NHS)

I used to get TOIL (education) which could be banked for the following year as well as some people liked to go skiing or holiday in New Zealand or whatever. a limit was then put on how much you could bank to stop people disappearing for 3 months Currently my holiday apy is paid out at end of year but due to admin cock up am getting it 6 months late. Used to have to take it as paid a/l in school summer holiday (I'm not f/t or a teacher so we dont all get the 6 weeks summer hols)but that got changed.

I short, what you think is right may not be as the rules change without much fanfare about this so check first

It's much simpler than described above:

You work overtime and cumulate toil.

Put a request for this time before the 3 months deadline and give them a good notice.

If they can't release you because they're short staffed they have to pay you or let you carry the tool into next period.

Losing toil when you have followed the procedure and asked for this time off in writing is a contractual breach.

It's as simple as "you work and get paid, you can't work for free because they're short staffed and can't release you to take toil".