The laws around working overtime
In normal circumstances, a new employee receives a contract specifying their guaranteed hours. If they work more hours, they expect to be paid or get the time back. Salon owners often ask my advice about this. They claim staff nowadays lack commitment, saying that when they themselves were employed they were expected to stay late when necessary without being paid extra. Historically, this may be true but was it ever reasonable?
Other salon owners tell me staff have lots of down time and sometimes leave early, so there’s an unwritten rule of flexibility; sometimes they go early, sometimes they go late. It might feel fair but legally that isn’t how it works. Inevitably, there is white space in salons but this needs to be managed. If the employer lets staff get off early then it’s their choice and it doesn’t mean they can expect them to work overtime for free.
If a disgruntled employee makes a legal claim, the only consideration would be the extra hours worked and whether the employee had been paid.
Employees might work additional hours to cover holidays or sickness. Often, they’re happy to do this for extra pay. But it might be that they just stay late because a client was late, or the treatment overran. In these circumstances, what do you pay? Legally, you don’t have to pay a higher rate for overtime, but terms should be clarified in your contract. Many offer the normal hourly rate or time off in lieu.
However, you don’t want an employee telling you they have accumulated eight lieu hours and want a day off tomorrow, so have some rules about who decides when and how soon it’s taken.Is overtime voluntary or is it compulsory and guaranteed? Your contract could say, “You will work an additional eight hours, on a Sunday once a month”, for example, whereas voluntary overtime can be offered but it can also be declined.
When you know a specific time is busy, such as December, another option is to require employees to work a certain number of additional hours or a sixth day per week in that month. If they refuse, you won’t be able to discipline them unless the overtime was compulsory in their contract and reflected in their holiday pay.
The European working regulations specify a maximum average hours of 48 per week (averaged over a 17-week period) and employees must receive at least one day off a week or two per fortnight. Staff can “opt out” and agree to work more than 48 hours. For under 18s, it is a maximum of 40 hours over five days.
Several employers have fallen foul of not paying the minimum wage. Not because they don’t pay the right hourly rate but because they expect extra hours for free. If staff regularly stay late, or if you require them to arrive 15 minutes before their start time, this is overtime and shouldn’t be for free.
David Wright is a consultant in all aspects of employment practice and law. He is the main employment law consultant for Habia and provides a personalised support service for UK salons.