Company accepts I've opted out of WTR yet is holding me to WTR and refusing my overtime

[1mper1um]

I have been with my employer for 4 years and during this time they’ve aggressively promoted overtime, happy for us to work OT as we please as long as we ensure there’s an 11 hour gap between shifts and at least one full weekend day off. The site is open from early til late so plenty of opportunity for OT.
 

After 3 months of 15 hrs OT a week I opted out of WTR so I could continue and exceed the restriction of 48 hrs a week on average (measured across 17 weeks) but was soon told that I was breaching WTR rand had to stop. I explained I had opted out of WTR but they said it didn’t matter.

 

I raised a grievance and whilst the outcome letter agreed that I can and have opted out of the 48-hour working week and that whilst they respect my right to do so and OR can be refused or accepted at the employee’s discretion. It also made a point of reminding me that my OT requests need to be approved before being worked.

 

I never demanded to work more time and I fully accept a company does not have to offer OT. My point is if OT is available and if I am not on any sanctions that limit my right to work OT then I should be able to work OT that takes me over 48 hours a week as I have opted out of WTR. Therefore a company accepting my right to opt out of WTR so I can work >48 hours is acting illegally in holding me to the WTR restrictions by refusing to let me work >48 hours.


TL; DR

• My office is open 120 hours a week, employees are contracted to 40 per week, and overtime is aggressively promoted.
• I worked 60-80 hrs OT a month for 3 months and opted out of WTR in order to continue doing so. HR accepted this but Scheduling pushed back, wanting to keep me within WTR limits of 48 hrs per week on average.
• All OT must now be pre-approved before being worked and I have been told I must stick to WTR (<48 hrs a week)
• My grievance outcome accepted my right to opt out of the 48 hour working week but that the company can still hold me to it.
• HR says the company can reject my OT requests to keep me in line with WTR whilst letting other people work those same hours.

 

 

[unclebulgaria67]

Have a feeling that WTR is still being applied under the Brexit transitional arrangements.

 

Opting out of WTR is possible, but agree with the outcome of grievance that the company can decide to restrict your weekly hours to no more than 48.

 

Overtime has to be agreed by the employer before it is payable.

 

"No one else has to have their OT approved before they work it. "

 

Why do you think other employees are able to work paid overtime hours without prior approval from the employers ?

 

Have you picked arguments with the company managers previously about any issues ?  My experience is that some members of staff have more problems with their managers than others, because of previous arguments. So they end up having rules applied to them strictly, when other staff enjoy greater freedoms/flexibility.

 

Or are you in a more senior position or  on a higher hourly rate, so any overtime is expensive to the employers, so they want to limit you to 48 hours.

 

If you are being treated differently, there must be a reason for this.

 

 

[1mper1um]

Why do you agree they can restrict my hours when they’ve accepted I can opt out?

[honeybee13]

Perhaps you could answer Unclebulgaria's questions as well as asking your own please?

 

HB

[Emmzzi]

I can't see anything illegal happening here at all, unless there is additional information missing. 

 

Is there anything else we should know?

[unclebulgaria67]

Your employers pay your wages and can decide how many hours above your standard contract hours you can work.

 

If you are being treated differently to other employees, perhaps you may know why your employers are behaving in this way ?

 

Ask your line manager to hold a 1-1 meeting with you to discuss this further and see what they say.

[1mper1um]

I’ve not answered the questions asked as they are not relevant (and I say that without meaning any offence). Suffice it to say there are no issues with myself/employer.
 

Yes my employer pays my wages but I do not see how they can restrict people from working OT because it will take them over 48 hours when one of the key reasons of opting out is to work >48 hours.

 

Treating employees differently is discrimination - even my site HR Officer recognises that. The only reason they brought in this rule for myself and not others it’s because they do not work enough OT to risk >48 hours and breach WTR. So they accept I can opt out of the WTO but at the same time want to keep me within WTO – thereby trampling on my right to opt out.
 

if you do not know the answer, that is perfectly fine, I just don’t have the luxury to run with guesswork.

[Emmzzi]

Not all discrimination is illegal. You have not suggested you are being discriminated against on the basis of a protected characteristic. So I still cannot see anything illegal.

 

I'm not guessing, I do this for a living, but you are free to consult and pay for a lawyer.

 

 

[Emmzzi]

 "a company accepting my right to opt out of WTR so I can work >48 hours is acting illegally in holding me to the WTR restrictions by refusing to let me work >48 hours."

 

That isn't a law which exists...nothing illegal is happening. 

[BazzaS]

Precisely this :

a) just because you can choose to derogate to work more than 48 hours (which avoids the employer breaking the law if you work more than 48 hours), doesn’t mean they HAVE to offer you that extra

b) just because they offer others more than 48 hours doesn’t mean they have to offer it to you, unless they are discriminating against you ( AND that discrimination bring based on a protected characteristic).

 

And not answering questions because you feel they aren’t relevant?

i) it may be that you are wrong, and they are relevant

ii) it discourages respondents because they might think “some people can’t be helped”

iii) If you treat the people trying to help you on CAG like that, how are your interactions with your employer? If you’ve been telling them “a company accepting my right to opt out of WTR so I can work >48 hours is acting illegally in holding me to the WTR restrictions by refusing to let me work >48 hours”  when you are wrong, and it isn’t illegal, maybe they just don’t want to offer you extra work?.

 

[unclebulgaria67]

@1mper1um

 

Why don't you contact ACAS, if you feel that you have grounds to take this further with your employers.

 

We don't think you have any grounds, based on what you have told us here. But perhaps you will share more information with ACAS while speaking to them and they will clarify for you.

 

Contact us | Acas

WWW.ACAS.ORG.UK

---

Workplace experts providing free impartial information and advice to Small Businesses, Employers, and Employees.

 

[Emmzzi]

I think a post has been deleted.

[unclebulgaria67]

30 minutes ago, Emmzzi said:

I think a post has been deleted.

 

Yes post #9 is a duplicate of post #1 and has been hidden as it contained no more information

[90CXS]

I would agree that it is worth a chat with ACAS as there are a lot of variables that will affect the output.

 

If you are refused OT under one of the 9 protected characteristics, i.e. disadvantaging you because of your:

•  age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

then this is not right.

 

If you are being singled out as a higher member of the team doesn't like you for whatever reason, then this is bullying and again not right.

 

they may be refusing for a number of valid reasons eg:

• The company may be doing it for your welfare- do they think you are stressed, taking too much on?
• They may not think your output justifies doing so many hours so can refuse.
• They may want to free up some OT hours so others can do a few.

Loads of legal and fair reasoning why they are refusing so will be worth your while reflecting on it or give ACAS a nod.

[1mper1um]

Guys/gals,

 

There's been a misunderstanding and for that I apologise. I didn't answer the initial questions because my appeal was just a couple of days away and didn't want to get bogged down with extraneous things that were not factors. I also - perhaps erroneously - got the impression that the questions were stabs in the dark hence my "if you don't know just say" response. Plus I thought my OP answered the questions however upon re-reading it I can see it may not to non-employees. Finally,  didn't want to make myself identifiable if my employer is reading (hence my redacted OP). I wasn't intending to seem difficult.

 

Short version:

My employee has limitless OT to spare - it just wants to restrict people to WTR limits because that's what the client wants.

They're happy for me to work OT once I'm under the 17 week WTR average.

My appeal has been delayed from to this week so any help is appreciated. 

I am one of the protected characteristics as stated in post #14.

 

Longer version (including answers to questions/points raised)

 

Why do you think other employees are able to work paid overtime hours without prior approval from the employers?

Because they're not at risk of >48 hours. I am and that's why I've been told that I must have my OT pre-authorised so that I don't >48 hours. They were happy for me to work 60+ hours a week until I did so for 3 months in a row and hit the WTR limit. That's when it came to light that the client we work for states that employees must stick to WTR and my employer appears to not want to upset the client. 

 

Ironically, when I checked their relevant HR page everything was factual in relation to WTR, it just assumed everyone would stay in WTR and didn't mention the right to opt-out. Also, when my employer took up the fight for me with the client and explained that I'd opted out, the client reportedly said they were unaware that employees can opt out.

 

 

Have you picked arguments with the company managers previously about any issues? 
Are you in a more senior position and thus more expensive? 
No to both. It's simply because they don't want me to exceed WTR limitations on working hours. We work on a contract for another company who stipulate their own employees must abide by WTR and therefore we must too. My employer was initially happy for me to log as many hours as I want and only changed their mind when the client pushed back.

 

They're happy for me to work OT just as long as I stay under the WTR limit of no more than an average of 48 hours across 17 weeks.

 

 

The company may be doing it for your welfare - do they think you are stressed, taking too much on?

They may not think your output justifies doing so many hours so can refuse.

They may want to free up some OT hours so others can do a few.

None of these reasons apply and there is limitless OT on offer so it's not a case of wanting to share it around. About 10% of employees do OT and the company would be delighted if it was 100%. They just don't want any one person working >48 hours. Anyone can work any hours they wish outside of their normal schedule as long as they don't breach WTR. So last week we had the situation of my employer desperately begging people to work OT as they had a massive shortfall on hours and were not going to meet their commitments to the client and everyone was eligible except me. As much as they wanted to include me, as much as they would have gleefully accepted my 20 hours of OT, they felt that they couldn't and it was lose-lose for both of us.

 

 

In summary

I felt it was discriminatory because:

 

1) The site is open 120+ hours a week and has an open-door policy on OT - the more the better and the company constantly begs for it and falls short of client requirements for number of logged hours.

 

2) They're initially happy for agents to work as much OT as they want and for months on end. Until you hit the WTR limit - even if opted-out

 

3) They insist on forcing employees to stay within WTR limitations despite employees opting out and OT being available - in which case employees are being denied not for valid issues (eg: welfare, performance issues, limited OT hours available) but because they just don't want that particular employee working the OT that a) is available and b) ends up being unfulfilled

 

4) So to me, it's discrimination to admit they need the hours working, they'd be happy for me (an opted-out employee) to work them if I hadn't hit the 17 week WTR average, and are only enforcing WTR because the client wants it

5) As it stands, they'd accept requests from every employee except me to work 4pm to 11pm on Friday. Likewise, they're canvassing every employee (except me).

 

6) They say my opting-out of WTR doesn't give me a legal right to work >48 hours but that is exactly what it does. If you have not opted out then it is illegal for you to work >48 hours therefore opting-out absolutely gives the legal right to work >48 hours. That doesn't mean a company is obliged to offer OT when it normally wouldn't or to extend it's opening hours to accommodate an employees demands for OT but it does, by default, give the legal right to work >48 hours if they OT is available. And the OT is available at my work.

 

7) As far as I know I am the only person of my protected characteristic and I am also the only one prevented from working >48 hours. Maybe there's a link, maybe there isn't.

 

 

[Emmzzi]

The client wants workers under 48 hours.

 

The client pays the wages.

 

End of story.

[unclebulgaria67]

There is no act of discrimination identifyable from the information provided.

 

Under the contract your employer has with the client, they want people working on their contracted work, to work less than 48 hours per week as an average.

 

Your position appears to more of an economic argument, as you want the earnings that result from say a 60 hour week.  Presuming you would not be ok to receive no pay for hours over the 48 hours per week.

 

Have you considered becoming a self employed contractor ? Then you can work as many hours as you want to, as you would be your own boss.  Work 48 hours per week under one contract and then find other work elsewhere. This is provided the employers can allow such an arrangement.

[1mper1um]

My position is that opting out provides a legal right to work > an average of 48 hours a week.
The main reason why people do is to earn extra money.
No one can be forced to opt out of WTR and work >48 hours but also no one can be forced to opt in to WTR and work <48 hours a week.
Therefore I don't understand how forcing someone to comply to WTR when there's plenty of OT available is legal.

 

To me it's negating my legal right to work more hours. However, you and Emmzzi are the experts so my opinion is irrelevant.

 

[BazzaS]

You are entitled to your opinion, though it has been explained why it is likely to be wrong.

 

Yet again, working >48 hrs/week is something you can agree to by opting out of the WTR. They can’t force you to do >48.

 

That doesn’t mean you can force them to offer you more if you’ve opted out, UNLESS they are discriminating against you AND the discrimination is due to a protected characteristic (AND, in the real world, you can then enforce your right not to be discriminated against due to a protected characteristic, by proving it!)

 

So,

 

A) what is the protected class that you feel has led to them discriminating against you?, (that you didn’t initially mention), and

 

B) have you spoken to ACAS? (as advised almost 4 weeks ago….).

 

[1mper1um]

7 minutes ago, BazzaS said:

working >48 hrs/week is something you can agree to by opting out of the WTR. They can’t force you to do >48.

That doesn’t mean you can force them to offer you more if you’ve opted out

I have repeatedly admitted they are obliged to offer me more hours or that I can force them to however I believe that I cannot be denied OT if the hours are there for the taking.

ACAS agree with me.

I don't want to divulge the protected characteristic as that makes me identifiable.

 

Edited June 26, 2022 by 1mper1um

[stu007]

Hi

 

I have to agree with other as your issue seems to be that your opted out of WTR and your Employer is keeping you at less than 48 hours.

 

Have you fully understood what is in post#18?

 

I am afraid if your Employer has signed a Contract with a Client that has a restriction in it that Employees must work less than 48 hours per week as an average then your Employer must stick to what is in that signed Contract with that Client.

 

If the Employer decides to let an Employee go over these 48 hours restrictions for Employees stated in that Contract it either must be with the full agreement of the Client (client consulted as to the reasons it is required and agreed by Client). If this is not done it then breaches the signed contract with the Client and there may be penalty clauses in that Contract or the Client may fully pull/end the Contract for it being Breached.

 

As an Employee you will not be privy to the Full Contract that your Employer has signed with said Client.

 

 

[1mper1um]

That same contract could state an hourly rate of £5 an hour but it would not be enforceable due to being against the law. So how is ‘we signed a contract to limit everyone to WTR hours’ legal when employees can invoke their legal right  to opt out of WTR? 
 

Also, did you see where I stated that the client was unaware that opting out was possible? This implies that they only stated adherence to WTR because they thought it was non-negotiable.

 

You asked if I understood what was being said in post #18 but that was mine so which were you referring to?

[unclebulgaria67]

So jointly sue your employers and the client, as the contact they agreed stops you working in excess of 48 hours per week on average.

 

Just not sure you could put a value on the claim, as hours above your stated contract hours, are discretionary by agreement additional hours.

 

You seem quite annoyed by the restrictions being placed on you, so get legal advice about how to frame a Court claim and start the process writing to your employers plus their client to warn them you will be issuing a Court claim to enforce what you believe is your right not to have an hours restriction placed on you.

 

 

[Emmzzi]

You are confusing rights and obligations.

 

you have a right to opt out.

 

they are not obliged to do anything about that. 

 

I do not know how many times we can say the same thing in slightly different ways. 
 

get a lawyer; let them tell you the same in a more expensive way, then maybe you’ll 

 believe it.

Edited June 27, 2022 by Emmzzi

[1mper1um]

20 hours ago, Emmzzi said:

You are confusing rights and obligations.

 

you have a right to opt out.

 

they are not obliged to do anything about that. 

 

I do not know how many times we can say the same thing in slightly different ways. 
 

get a lawyer; let them tell you the same in a more expensive way, then maybe you’ll 

 believe it.

I've already conceded that you are the expert and my opinions are irrelevant - I'm just replying to questions and comments (such as the misassumption that I believe that simply having a legal right to work >48 hours means I must be allowed to do so).

 

So to avoid going round in circles, and me appearing stubborn, let's try this from a different angle. 

 

1)

My HR officer, manager and ACAS rep that opting out of WTR:

a) provides the legal right to work >48 hours (as it's illegal to work >48 hours otherwise)

b) cannot be taken advantage of if there's no OT or there are issues (eg: disciplinary or performance issues, welfare concerns, limited OT).

 

Do you agree with that definition?

 

 

2) 

We believe that as I've opted out of WTR and the company cannot get enough OT hours filled (and will suffer a financial penalty as a result), the rationale of ''you can't work >48 hours for no other reason than we just don't want you to' is not valid as it is enforcing WTR restrictions on someone who has opted out. 

 

Do you agree? If you don't, can you explain how forcing WTR on someone who's opted out and when there's plenty of OT available, is legal?

Because whilst we don't think opting out means an employee must be allowed to work > 48 hours, it is still a legal right to work excess hours and therefore there must be compelling mitigation to deny this right (eg: performance issues, site isn't open, lack of managerial cover) and not just 'because I don't want you to'.

 

 

3)

Isn't it suspicious that the client's position is based on them not being aware than employees can opt out of WTR?

 

 

If you would be so kind as to provide clear answers then I won't push back any more.