"Discretionary" Overtime Withheld by Former Employers

[motorleague]

Hi there, I'm hoping somebody will be able to offer me a little bit of advice.

 

I've recently changed jobs, and in my final pay my employers didn't include several hundred pounds of shift allowance I should have had for my last run of night shifts. I chased a number of times, and was eventually told (by e-mail, so I have this in writing) that the outstanding overtime would be paid in the next pay run.

 

When this didn't happen, I again chased it up, and was subsequently advised that my shift allowance was discretionary, and that as I was allowed full pay for a couple of emergency operations I had the previous year (as opposed to the statutory sick pay I was contractually entitled to) that in light of this they wouldn't be honouring my shift allowance payment. I don't yet have this confirmed in writing from them, but I have requested it.

 

I've checked my contract, and it doesn't make any mention of overtime payments.

 

Does anybody know if I'd be likely to have any redress if I were to pursue this through small claims or similar, I'm guessing chiefly on the grounds of the previous statement from them advising I would be paid?

 

Thanks in advance.

[Emmzzi]

is it unsociable hours shuft allowance or actual overtime?

 

and what is the exact phrase please about hours of work in your contract

[motorleague]

It's not specifically stated, but I'd say it would be considered shift allowance rather than overtime.

 

All that's mentioned in regards to working hours is the following, it's pretty vague:

 

Your normal hours of work are on a rota basis. You are entitled to a one hour unpaid meal

break on your day shift and one hour thirty minutes on your night shift to be taken at a time

convenient to the business. You will be required to work 9am – 6pm Monday to Friday until

you are ready to go on the shift pattern.

[SNALF]

Hi Motorleague, could you check what it says under the 'salary' section of your contract as it may state the salary as an amount + shift allowance. Need to establish if they have broken the terms of the contract before advising you.

[motorleague]

It just mentions basic annual salary, there's nothing relating to shift allowance or overtime :-/

[Emmzzi]

shift allowance is unsociable hours

 

overtime is extra hours

 

did you work extra, or just unsociable, hours? you need to be clear on what you are claiming!

[motorleague]

The night shifts were part of a standard, expected shift pattern, they weren't overtime.

[SNALF]

Ok thanks. You may get somewhere with this. I would suggest that you may wish to write to them and claim an unfair deduction from pay. Your recourse for this is tribunal, not county court. If the contract is silent on shift pay and allowance, then custom and practice comes into play and if they've always paid extra shift allowance for night working, then it becomes an implied term of your contract and the employer cannot break this term in the same way as an express term (written down). In order for something to be considered implied in custom and practice, you need to show it as established. i.e. long-standing or 'notorious'. You need to show how long the practice has been in place and has it been followed without exception for a period of time?

“notorious”, i.e. well-known and expected to be received.

In other words, if you can evidence that they have paid this allowance for other night work and pay it to other people who work nights, it is then an implied term and they cannot break that. I would suggest holding onto all of your payslips etc, write to them and claim the unlawful deduction of pay to which you are entitled as an 'implied' term of your contract. State that you can evidence that this is established and notorious and you want paying or consider tribunal.

[motorleague]

My previous payslips do in fact reference several previous stints working nights as shift allowance.

 

Thank you very much SNALF, that's encouraging to hear.

[SNALF]

You're welcome, good luck and keep us posted.