Holiday pay and overtime.

[Alphabet1spaghetti2]

Posting on behalf of a former colleague not on any forums.

Employee has their part time (32 hours) contractual set hours for the week. These are set on the Friday - Thursday rota. Happy to work them. However they have been asked to do overtime/additional hours (8 hours) within the same rota week. The employee has refused the overtime. Up until now all overtime is voluntary.
Their line manager has said that as they have refused to do overtime, they will be forced to use holiday time owed to the employee instead. The employee doesn’t want to use their holiday entitlement this way, but doesn’t want the overtime either.
holiday year is Jan-dec.

I can’t find anything online to see if this legal/illegal. I have suggested Acas and head of HR Uk as first places to inform.
Anyone have any insight/links I can send to my former colleague? Thank you.

So if I understand it, employer A has been asked to to do overtime but has refused. Boss has said he must book the overtime hours off as holiday.

surely you can’t take holidays for hours you not scheduled to work!

You can’t be expected to take annual leave for hours you don’t work.
it sounds as though they are trying to frighten your friend into working.
definately contact acas, they are excellent

@RiverLen yes exactly. I didn’t think it was legal either, but cannot find anything about this particular situations legal position online. Acas not available
until Monday morning.

it’s not the shiftiest thing this employer has done - and if I wasn’t already an ex -employee I definitely would be after this stunt.

I would contact ACAS. What would they do if you friend was abroad and couldn't do the overtime, having an op or for whatever reason- just didn't want to do it? That sounds ridiculous. I hope they can find another job, because I don't think this is legal!

@Drummode he refused to do the overtime. So it didn’t frighten him into doing the overtime - which given they are extremely short staffed this weekend, is the reason they have tried this tactic. So, although he’s lost a days holiday entitlement, they still haven’t got the staff to cover this shift. (Small win for the employees?)

@SM4713 I have no idea what tactic they would try next. I suspect it’s a particular line manager who doesn’t understand what they can legally do/not do due to lack of training. - or in a power trip!

Acas will be contacted as will HR uk as opposed to in-house Hr department- who are utterly useless. My ex colleague is furious.

I had a quick look on Citizens Advice Bureau. Couldn’t find anything either, because it’s not a thing, if that makes sense.

Does your friend have a contract? In a union? Is there HR for the company? Because that doesn’t sound right at all. You can’t force an employee to take annual
leave on a day they aren’t contracted to work anyway.

@RiverLen thank you! I was wondering if my normal Internet sleuthing skills had abandoned me. All I could find was that employers can book holiday on behalf of their staff and force them to have holiday rather than work their normal contracted hours, and this happens for my Dh if there isn’t enough work for the drivers, so I know that is legal. - but I can’t find anything about them being able to pull this stunt. The employee wasn’t scheduled to work - it was a normal day off for the week.

I’ve never heard of it either. But not the first time this company have tried dirty tricks on its staff. So…
it will be interesting what acas have to say.

@Birdienumnumm yes they have a contract - it’s with a big international business. Which makes it even more odd.
No union- the business doesn’t recognise them. They are a union member through a second job they hold, who are very good.

Deducting a day's holiday because the employee refuses to work overtime is almost certainly a breach of contract. If the employer only gives the statutory minimum holidays (5.6 weeks), it is also a breach of the Working Time Regulations.

@prh47bridge it’s not been lost as such as they’ve been paid it ?- they’ve been made to take a day’s holiday instead of doing over time.
I agree it’s been lost in terms of the employee being able to use it at their own choice. But is it ‘lost’ if it’s been paid?
I’m not convinced in the wtd - as they’ve still only done their contracted hours and even with the holiday hours added wouldn’t breach 48 hours in that working week.

I would interpret that as they have been paid for overtime they haven’t worked, rather than paid for holiday. So they need to pay it back.

@Aprilx The text received states that if they will not work overtime, then holiday pay will be used for that shift payment.
they don’t want to work overtime nor do they really want holiday to used for a shift they don’t want. It’s a really odd situation. Anywhere else you just wouldn’t be paid as it’s a normal day off from work unless you specifically said you would work overtime - then You would be paid whatever your overtime rate was or have time back in lieu.

I truly cannot fathom what you mean. Pay doesn’t vary because of holiday pay, I had some leave last week, I didn’t have any leave in July, my monthly pay will be identical in both months. Your previous post indicates that this person had some extra pay, over and above the norm, which if that is the case, I would say was overtime pay and if they didn’t do the overtime, they need to pay it back and holidays don’t come into it.

@Aprilx my ex colleague has set hours to work each week - these are done. They have been told that they have to do an extra shift as overtime, if they refuse to do the overtime. they must take that overtime shift as holiday pay. They do not want to do overtime or loose a days holiday. They don’t want the extra money - they want their normal day off!
Overtime has always been voluntary as per their contract.
the text they have received from their line manager explicitly says if they refuse to do the overtime shift, they will be paid a days holiday instead.
so although they will get paid for a days holiday (because they don’t want to do the overtime) - they lose the ability to book that days holiday as they want in the future. That days holiday has been booked for them.

essentially it a carrot approach to getting people to do overtime - do it or lose the ability to book a days holiday when you want.

So, your friend is contracted to work 32 hrs a week (no overtime) and now his employer has asked him to work 40 hrs a week, including 8 hours mandatory overtime. Has your friend been consulted on this change to his working conditions?

I can not see how this is legal. Yes employee would be paid for holiday but if still working normal hours they are not getting a break??

Is there a union?

Ok, so if I understand you correctly, they are being paid for the overtime regardless of whether they actually work it, but losing a day's holiday if they don't work it. That still sounds like a breach of the Working Time Regulations if they only get the statutory minimum holiday. Unless their contract includes compulsory overtime, it is still a breach of contract.

The situation your ex-colleague is in is utterly bizarre. I've come across a lot of terrible employer behaviour in my job but never anything like this.

If overtime is non-contractual you can't be forced to work it.

Employers, with notice, can impose annual leave on employees but not in the circumstances you describe, only for contracted hours.

Your ex-colleague should consider taking out a grievance challenging the imposition of annual leave on non-contracted hours. They should request a copy of the company policy that is being followed by management - I'd be amazed if it existed.

The company may not recognise trade unions for collective purposes but you have the right to individual representation at a grievance meeting.

@IbizaToTheNorfolkBroads no consultation. All said and done within 24 hours. 24 hours was given that either you do overtime or paid holiday instead.

@Autieangel no union recognised by this large international company. Although my friend is in a union at another job.

@prh47bridge yes you’ve understood correctly. Thank you, I will let them know it’s a breach of contract. Everything is being documented and will sent to Head of HR for uk and Ireland. The in house Hr refuses to deal with such problems saying it’s for the line manager to deal with!

@Catmummyof2 it is utterly bizarre and your analogy is exactly what’s happening. Unfortunately it’s not out of character for this particular employer. Then they wonder why they have a revolving door on hiring employees!

@soupmaker agree it’s bizarre, but kind of normal for this manager and the company site. They were difficult to work for in my opinion. Whilst there is company policies posted everywhere - this particular manager doesn’t know or care about policy or law. This manager tends to behave as if their beliefs are law and whatever they want must be adhered to.
My ex colleague has documented everything, what’s app messages/ conversations/ company policy/work contracts etc. They will be taking it further.

@Alphabet1spaghetti2 Lord Denning defined 3 types of overtime which can be summarised as:

• Guaranteed - an employer is contractually obliged to provide x hours overtime and an employee is contractually required to work the overtime
• Non- guaranteed- an employer is not contractually required to provide overtime, but if they do provide it the employee is contractually required to work it
• Voluntary - an employer is not contractually obliged to provide overtime, but if they choose to offer overtime the employee is free to refuse.

It sounds like your friend has been offered voluntary overtime and has exercises their right to refuse. As @prh47bridge says it’s a breach of contract/Working Time Regs. Talk to ACAS and, if they are in a TU, their TU rep.

A key point of WTR is an employer must do nothing to deter/prevent an employee from taking their leave. Making an employee take leave on a non-working day prevents them from taking leave on a working day and so is a detriment.

@Sisterpita thank you. Exactly the type of info I was after!

You can't find anything online about this because what this manager is pulling is preposterous.

No manager can't do this.

Your suggestion of ACAS and HR UK are the best ones.