overtime not offered to all

[steampowered]

I think the Op has to be careful. This is not discrimination in any legal sense of the word so I do not think accusations of discrimination are justified. There is nothing to suggest Op was treated differently because of a protected characteristic, there is a good reason Op was not offered overtime (Op does not work Fridays) and there is nothing to suggest that management excluded the Op deliberately. This is a very serious accusation and not something that should be thrown around with a bloody good reason. Making serious accusations against management without a good reason would identify the Op as difficult to work with and is a good way to make sure he/she never gets any overtime.

 

It is reasonable to politely ask to be given overtime in future. But do remember there are limits to how far this can be done. Only one person was needed to work this overtime and splitting it between different people would be much more complicated. In any event the overtime is on Fridays and Op does not work Fridays.

 

It isn't quite right though Atlas that there is no legal challenge to favouritism, if for example overtime was deliberately and blatantly awarded to only one person there could be a potential constructuve dismissal case.

 

Unless there is unlawful discrimination based on a protected characteristic I do not think this could ever be constructive dismissal. Constructive dismissal occurs when the employer seriously breaches the employment contract such that the employee is effectively forced out. But employees do not have an entitlement to work overtime. It is difficult to see how being denied something you never had a right to in the first place could be a breach of the employment contract.

Edited March 17, 2013 by steampowered

[altobelli]

Sidewinder, Steampowered, I should respond to some of the points you raised.

 

It is a mistake for any employer to act unfairly in the belief that they can get away with it legally. Likewise, it is a mistake to advise people experiencing problems at work not to to anything about it just based on whether or not they have a legal case.The over-riding objective should be to treat employees fairly. This would resolve most issues, avoid bad industrial relations, grievances and legal action. Legal action is damaging to an employer and expensive to defend, even if the Claimant fails, so its best not to put an employee in the position where they even consider legal action. To be honest, most cases where an employer behaves unfairly can leave them open to some sort of legal action - they may thing they've covered themselves in respect of one set of laws, only to be open to a claim under another. To make people aware of this isn't just 'telling them what they want to hear'. People who post comments tend to do so based on their own values - some people believe the employee has extensive rights, while others believe an employer should be able to do what it wants to a large extent and that people should be discouraged from claiming. People's comments on both sides don't reflect what they want people to hear so much as reflect how they would like the world to be.

 

In this case I'm clearly not advising the OP to take legal action, my advice was not even to pursue a grievance, rather I am advising that he makes the manager aware that he would like to be considered for overtime. I would be quite surprised if a Council didn't have some form of overtime allocation policy in place, and to allocate overtime unfairly is not a good idea for the employer - sooner or later an employee with a protected characteristic will be affected and the employer is then open to Discrimination claims. It is unlikely an employer is going to allocate overtime blatantly unfairly and exclusively to one person, they could then be put in a position where they have to defend this practice to others.

 

My suggestion that blatant and continued unfairness in the allocation of overtime could give rise to a Constructive Dismissal claim seems to have generated apoplexy, but it is nonetheless true. I would stress I am not advising this OP to resign and claim Constructive Dismissal, and for anyone to do this is a decision which should not be made lightly, but if an employee is consistently denied overtime for no good reason, has raised grievances about the matter, and overtime is still being denied when it is being offered to other people for no discernible reason, such a claim is an option because the employer is acting unfairly, not due to the right to overtime per se.

[assisted blonde]

Just a copuple of things the person who got the overtime HAD ASKED FOR IT the others had not, the op dosent even work on Fridays, I honestly think that other workers are miffed that they hadnt asked for overtime and want to blame anyone but themselves (in this case the manager for giving it and the employee for not havibg certain qualifications) I dont think there is anypoint in raising a grievence councils bog themselves down in enough unnecessary paperwork as it is, just have it registered that you are interested in the future and leave it at that for now, its annoying but lifes annoying.

[becky2585]

There is potentially another argument here.

 

Skinnered, I think the argument here would have to be less favourable treatment - not discrimination.

 

That being the case, if the only reason that the OP wasn't offered Friday overtime was because they don't work Fridays, there could be an argument that the less favourable treatment was due to the OP's status as a part time worker, which could be unlawful. Therefore, as previously indicated, a formal grievance would be the way to go.

 

I believe the law still says that overtime for part time employees at a higher rate only kicks in if they work over full time hours, and any hours worked over usual hours and up to full time hours can legitimately be remunerated on basic pay only - but that could be a contractual issue, so worth checking.

[caring guy]

Neither I or the person who got the overtime has protected characteristics.

 

Two of the people not offered the overtime definitely has protected characteristics.

 

If I were the manager I would have:

 

Advertised the extra hours on the board.

 

Shared the overtime out between all interested parties and drawn up a rota for 3 months.

 

As I do not work Fridays I would have had a whole day's work, if asked, on Fridays. This person is getting overtime on Thurs and Fridays for 3 months. This comes to around £1600.

 

Where does equality leave me with regard to making a grievance?

[assisted blonde]

If you made any sort of grievence what would you like to see happen, if you would just like a different system in future I honestly think that an informal chat would work just as well, if you raise a grievence I bet you would not be picked for overtime in the forseeable future, and as i said the manager made his decision (he is a manager) and it was based on the fact that there was overtime availible on a Friday and the person who got it had asked for overtime so he knew he would be interested, also by the time it was advertised, interested parties made it known and then a rota drawn up to share it out eaquallyit would have been a lot of hassle. Have you thought that the person who asked for it may have had a very good reason for needing the extra money that you dont know about? and the manager saw this as a way of helping him? Do you not work Fridays by choice? if a permenant job came up which ment you working every Friday would you want it? I honestly think that this could backfire on you if you make too much of a fuss about it.

[caring guy]

I'm a part-time employee contracted 4 days a week, not by choice.

 

Putting an ad on the staff notice board would have added a few days to sorting this out fairly.

 

I still want this sorted out fairly.

 

One person is getting £1600 worth of overtime and I was told that if extra work on a Friday was available i'd be considered. I wasn't.

 

I will be meeting this manager but I think that he wont be able to offer me any real FAIR answer.

 

If I put in a grievance the manager's boss will get to know about it so he wont do it again.

[assisted blonde]

No but you still probably wont get any overtime? and how do you know you wernt considered? he may have done and not told you? seriously think very carefully before you get too formal with grievences etc got to say if it was you who had been offered the overtime you probably wouldnt be saying it should have been done differently etc Council managers are very strange and if the manager has been there a while unless he has done somthing really bad it probally wont make a lot of difference to him if his boss does find out, except that he will know you stirred things up for him.

[caring guy]

No but you still probably wont get any overtime? and how do you know you wernt considered? he may have done and not told you? seriously think very carefully before you get too formal with grievences etc got to say if it was you who had been offered the overtime you probably wouldnt be saying it should have been done differently etc Council managers are very strange and if the manager has been there a while unless he has done somthing really bad it probally wont make a lot of difference to him if his boss does find out, except that he will know you stirred things up for him.

If it was offered to me I would have suggested the action I have already described.

 

I'm a fair person. I'm a team player and would have made a rota for the extra work with all people interested.

 

My boss told me nobody else was considered.

[Jimbob1987]

As a manager within the care sector where overtime comes up all the time, I usually ask the person who pops into my head first, this is usually because I know they will do it and have in the past. Sometimes this type of thing comes up at a busy time and I have no time to speak with everyone and just do it to get it out the way.

 

Unfortunately unless stated in contract or there is a protected characteristic (bearing in mind ALL who wasnt asked have to have one or more of these and the chosen person has NONE) the manager can give extra hours to anyone they want.

 

As previously stated my suggestion would be to speak to manager and say that if any OT comes up in future they would like to be considered. This only means considered they would not be guaranteed it.

[altobelli]

As a manager within the care sector where overtime comes up all the time, I usually ask the person who pops into my head first, this is usually because I know they will do it and have in the past. Sometimes this type of thing comes up at a busy time and I have no time to speak with everyone and just do it to get it out the way.

 

Unfortunately unless stated in contract or there is a protected characteristic (bearing in mind ALL who wasnt asked have to have one or more of these and the chosen person has NONE) the manager can give extra hours to anyone they want.

 

As previously stated my suggestion would be to speak to manager and say that if any OT comes up in future they would like to be considered. This only means considered they would not be guaranteed it.

 

I agree with this to an extent - the best approach is to the speak to the manager and say you'd like to be considered for overtime going forward.

 

It isn't the case though that overtime can be allocated any way the employer wants. If its done unfairly the employer is leaving themselves open to legal action. And a claim of Discrimination can be made if a person with a protected characteristic isn't considered for overtime, doesn't matter if other people who don't have protected characteristics aren't considered.

[Jimbob1987]

I agree with this to an extent - the best approach is to the speak to the manager and say you'd like to be considered for overtime going forward.

 

It isn't the case though that overtime can be allocated any way the employer wants. If its done unfairly the employer is leaving themselves open to legal action. And a claim of Discrimination can be made if a person with a protected characteristic isn't considered for overtime, doesn't matter if other people who don't have protected characteristics aren't considered.

 

Unfortunately the manager can give OT to who ever he wants, as long as staff get their contracted hours.

 

Also for discrimination all the staff not receiving overtime must have a protected characteristic and the person getting it none. If this wasnt the case anyone with a protected characteristic could shout discrimination everytime they dnt get their own way.

[altobelli]

Unfortunately the manager can give OT to who ever he wants, as long as staff get their contracted hours.

 

No, the employer must act fairly otherwise an employee can potentially claim construcive dismissal. But its academic, I can't see any manager defending a complaint or claim by admitting the overtime allocation is unfair or allocated on a whim, more than likely they'll put some procedure into place.

 

Also for discrimination all the staff not receiving overtime must have a protected characteristic and the person getting it none. If this wasnt the case anyone with a protected characteristic could shout discrimination everytime they dnt get their own way.

 

No, if someone with a protected characteristic is treated unfavourably in comparison to someone else its inviting a discrimination claim regardless of how other people are treated. Otherwise, its possible for an employer to discriminate against employees with protected characteristics and attempt to mask it by treating other staff badly.

 

My advice for both of these points is to have a fair overtime allocation policy in place to minimise the risk of claims

[caring guy]

I've had a meeting and been told a decision about the overtime being shared out amongst all will be made shortly.

 

I said if that is not the decision all parties will raise a grievance.

[Emmzzi]

will they? I'm not sure you can speak for everyone else.... can you?

[altobelli]

Yeah, honestly I'd hold back on the grievance approach for now. This is something that might be best resolved with an informal approach at the moment.

[Atlas01]

Indeed it will alto, i would suggest requesting a collective "team meeting" (for those willing to step forward when push comes to shove) to set out the future procedure for both requesting and allocating any future overtime that arises in order that there is fairness in allocation and thus good employee relations throughout the team.

 

The agreement would consist of the employer setting out what they want (what are you going to do if their top priority is the qualification as i see that as a fair employer request at face value) and from the employee side a clear commitment to work as the agreement is, it could be done via rota, names on an overtime sheet when it comes up, there are various ways, make it easy for the manager as you can

 

the key is the employer doesn't really care who does it, as long as it gets done and they will always resist anything that involves more effort than a current practice which works for the manager!

 

you may even find that there is already an agreed overtime procedure in place working for a council as this is usually the case (check with your union) but tends to be ad hoc in care settings especially if working in smaller respite or supported housing

 

Forget the protective characterises debate for now, there are non according to you and without getting back into that debate around direct and indirect discrimination i know from personal experience of being refused overtime because i had a disability that i got nowhere with the union or the solicitors until the employer was stupid enough to openly admit this was the reason for the refusal.

[Skinnered]

Caring Guy, You have been very patient bearing with us throughout this exchange of views and opinions. Especially when most of what you initially enquired about seems to have been overlooked or forgotten.

 

That initial enquiry was:

Should extra work be advertised so all those interested can put their name forward or

can you just give it to a "favourite" without asking others?

 

You have since explained why you feel aggrieved about this:

 

(a) The extra work was offered to one person without any opportunity given to anyone else who might have been interested or equally, or even more, entitled to be offered it.

 

(b) No reasonable explanation has been given to justify the manager’s decision despite informal conversations and questions among those concerned.

 

The first question then is; do you have a grievance? I say you do.

 

(i) Because you believe you have and you say you have.

 

(ii) You raise and discuss the issue with colleagues who are equally put out.

 

(iii) You have taken the time and trouble to seek advice about the course of action you should take on this forum.

 

I have yet to hear what this is if not a grievance.

 

The next question is; how to resolve your grievance?

 

(i) Do nothing; put it down to bad luck and get over it. This is not an option unless you are prepared to accept being treated like a doormat.

 

(ii) Try to have the matter resolved informally. You are being advised to take this course.But you have already tried this option; you have said repeatedly that you have tried over a period in conversations and informal enquiries to have your concerns and questions answered, to no avail. I see no point in continuing to advise this course. A reasonable manager would have set your mind at rest at this stage.

 

(iii) Put your grievance on a formal footing by invoking the grievance procedure.Employment law gives you the right to pursue your grievance through a formal grievance procedure. This could hardly be described as the action of a nonconformist or a revolutionary.

 

At the end of the day all you want at this stage is an answer to your grievance. It may be that you will get an answer that is quite reasonable and will persuade you that your grievance is unfounded. It may be that the answer you get will lead you to believe that you have grounds for taking the matter further. Either way you need to take the first step before you begin seriously considering the second.

 

It seems to me that you have already come to the conclusions and are more or less following the process I have outlined above.

 

The law lists some forms of discrimination as being more serious than others. This is not to say that suffering unfavourable treatment is not discrimination.

 

I suspect Atlas01 has lost the plot. He begins by advising caution and suggesting that making an official complaint might be going too far and has since progressed to advising CG to get his colleagues organised, sort of unionised, act as shop steward with authority to go to management with ultimatums.

 

Of all the advice proffered I find that of the ‘manager within the care sector’ not only sad but worrying and anyone with such an attitude should not be in a position of authority. It shows two traits that are unacceptable in a manager entrusted with responsibility. Firstly, too incompetent or too lazy to set up a fair rota system for overtime, especially since, on his own admission, the need for it comes up all the time. Secondly, what sort of a shambolic setup is he creating and running when his main concern when making decisions is to do the first thing that comes into his head in order to get it out of the way. I hope and pray that I or mine are never in the situation where he or anyone with similar ideas on how to manage has any influence.

 

Anyway Caring Guy, it seems from your last post that you are getting close to a resolution, here’s hoping.

[Emmzzi]

The law lists some forms of discrimination as being more serious than others. This is not to say that suffering unfavourable treatment is not discrimination.

 

Oh FFS. I don't know how many more times you are going to push this confusing line. Discrimination has a set meaning in law. It is not the same as unfavourable treatment. Please go and read up on it, because you ae encouraging people to use incorrect legal terminology which is only more likely to get their greivances, ETs etc rejected.

 

Giving bad advice to people in stressed positions is dangerous and encourages action based on ill founded beliefs. That's fine for you to do from behind your screen when it is not your family income at risk. Please look to yourself before you accuse others of losing the plot.

[Skinnered]

Guidance on Gov UK site:

 

 

Discrimination at work:

 

The law protects you against discrimination at work, including:

 

 

 

• dismissal
  
• employment terms and conditions
  
• pay and benefits
  
• promotion and transfer opportunities
  
• training
  
• recruitment
  
• redundancy
  

[Emmzzi]

and? that is simply a list of areas - non exhaustive - where discrimination may occur. It does not define what discrimination IS.

 

Please, either get educated, or stop posting in areas where you don't understand the law.

 

I am putting you on ignore now because your "advice" is winding me up, but I urge the OP to take advice from a professional before acting on any of yours.

 

This is not about petty point scoring and proving you are "right." anyone can google and find half truths and post selectively fron them to appear to support their statements.

 

It is about real people's lives. Please stop!

[mariefab]

Those ^ are some examples of potential areas of less favourable treatment.

 

The law describes discrimination as; treating someone less favourably than others because of a protected characteristic.

 

Protected characteristics include; age, disabilty, gender reassignment, marriage and civil partnerships, race, religion or belief, sex, sexual orientation.

 

So, to claim unlawful discrimination you need 3 things.

1. You need to have suffered less favourable treatment.

2. You need to have a protected characteristic.

3. You need your protected characteristic to be the reason why you suffered the less favourable treatment.

Number 3 is the important one. Without it there's no discrimination.

 

What appears to have happened here is:

One person asked for extra hours.

Overtime became available.

The overtime was given to the person who asked for extra hours.

 

Now it's understandable that caring guy and other staff are unhappy because they would have liked to have been considered for the overtime too.

The best way forward seems to be to make sure that management are aware that all these staff would like to be offered any future overtime.

[becky2585]

Guidance on Gov UK site:

 

But again, you're missing the legal point. Yes, discrimination is unlawful in those areas (and many more) but only if the principal reason is BECAUSE OF a protected characteristic as defined by the Equality Act.

[Atlas01]

I suspect Atlas01 has lost the plot.

 

Hah, I lost it along time ago , one of the reasons was having to constantly deal with people who didn't want to accept that they had no case or claim because someone at the CAB/PUB/Internet had told them what was happening to them was against the law (in employment terms) when it wasn't

 

I don't mind your accusation as it infers I had a plot to lose in the first place

 

I do hope you are in a work position where over the next two decades you can be at the harsh end of the stick and dealing with this stuff for a living with people's livelihoods at stake if you get something wrong or fail to advise them correctly, I dare say if you do you'll have walked the same miles in my shoes and the penny will drop on how dangerous your advice is here.

 

I bid you good evening

[Skinnered]

The definition of 'discrimination' extolled in the preceding posts and 'set out in law' is the definition used in the Equality Act 2010. If the definition is used in any other Act I'm sure I'll be informed.

 

In one of my first posts I wrote:

 

The manager has obviously blatantly discriminated in favour of one individual by offering him overtime.

 

Somewhere along the way someone has decided that the term I used 'discriminated in favour of' was intended to mean what 'discrimination' means in the Equality Act 2010. That was an error promulgated by those who asumed it, not by me.

 

Bearing in mind that nobody, at that stage, had mentioned the law or legal action, the layman reading this, not conversant with employment law or legalise as opposed to general day to day language, would not immediately jump to the conclusion that my term and the EA 2010 definition were the same. Only someone too clever by half would assume that everyone else is going to jump to the conclusions that they erroniously jumped to.

 

The advice to handle the matter under discussion here informally has been taken, for better or worse. It seems that is not enough for some, they feel compelled to attact the integrity, vilify, insult, abuse and silence anyone proposing an alternative course of action.

 

As for 'people in stressed positions': There seems to be only one person here in that state and self confessedly 'wound up'. Suggest you take a chill pill.

 

Atlas01, no ofence intended and thanks for taking my comment as it was intended, without malice. I sympathise with you if you had to go through situations similar to those we hear about on here. Suffice to say some others of us have spent many years on the front line too representing our fellow working man and witnessing how the sort of management sometimes held as paragons of virtue on here ground them down, in some cases to an early grave.

 

But this is not about us, or is it? Some seem to think so.