Not allowed to work overtime

[KaoticKittty]

Wondered if anyone would be able to help?

A young lad I know has been working for his company for a while and remained on his "old" contract when the firm was taken over. The old contract has more favourable terms and conditions than the "new" contract that his peers are on. He has worked there for around 4 years and the changes took place around 18 months ago.

He was told yesterday that he was only allowed to do overtime if the others could not do it because "he costs more than the others". This missive seems to have come from his line manager rather than anyone senior in the company.

Up til now, the overtime was shared out fairly. I don't think this is right but is this discrimination? Is there something he could quote at them?

I need to go out shortly but would be very grateful for any ideas.

If he wants overtime to be shared out fairly I imagine he should be expecting fairness in everything else as well.

The fact that the contracts aren't fair is not his fault. He was working under the old contract and was lucky enough for this to be the way the firm taking over sorted things. He has been working with this contract and doing overtime for the last four or so years.

Why should he now be penalised? He isn't responsible for the others being taken on with a less favourable contract.

BTW, we are not talking loads of money. He is a couple of pounds an hour better paid, that's all.

I don't know the rules on overtime but I imagine it can be allocated however the people allocating it see fit. No-one is entitled to overtime.

If you were running a business why would you choose to give extra work to someone who costs more to achieve the same thing?

So he'd have to weigh up whether he'd be better off asking to change to the new contract that everyone else is on (and losing his few pounds extra an hour, but gaining the opportunity to do overtime) or staying as he is but without overtime.

Someone who actually knows employment law may be along in a while.

Thanks Trillian,

Sorry I did not come back last night, RL overtook.

There is no option to change contracts - also, if I were running a business, I would have made sure this situation hadn't have occured in the first place, not whined about it now

Is the person who is running the business 'whining about it'? It doesn't sound like it tbh, and what would you have done to make sure the situation didn't happen in the first place?

Seems unusual for a new employer to refuse a request for staff who have been taken over to go on to the same terms and conditions as everyone else. I would guess it would be preferable for them to have everyone on the same.

I would have ensured that the "old" employees were put on the new contract immediately. When a new company takes over there are ways to do this legitimately. They didn't, therefore the company shouldn't be changing the rules now.

I'm not asking about the fairness between employees, it's obviously not fair, but it's not this lads fault. It is the fault of the new company for letting this situation occur. Surely they can't suddenly victimise one person simply because they didn't take steps to make things equal in the first place?

And no, there is no option to change contracts. The employer hasn't offered and if they did then would you change contract and lose four years employment entitlement?

Actually, as all this has come from the line manager, I suspect the people running the company don't actually know what is happening. He has probably been asked to cut costs and this is how he has chosen to do so.

What I wanted to know was whether there was an employment law he could quote to the line manager to show that his decision isn't lawful. If it is lawful, then there is nothing he can do except put up with it.

Unless he has any sort of contractual or customary right to overtime (and I doubt that, since companies tend to keep overtime very flexible), no, there isnt' really any rule he could quote.

He could, however, suggest that he would take overtime at the same rate as everyone else. That might be a compromise...

I'm no expert but I though when a company takes over another company, the terms and conditions of staff had to be protected, so presumably it isn't easy to forcibly put them on new terms and conditions, especially if it would involve a pay cut - you say he's on a higher salary that others.

So he hasn't actually asked to change to the different terms and conditions? They perhaps haven't actively offered because it would involve a pay cut and they wouldn't think there's any chance he would want to. Why would he lose four years employment entitlement anyway just because he changes his terms and conditions?

ribenaberry's idea of offering to do overtime at the reduced rate sounds like a good compromise to me.

You need to understand TUPE Legislation. When the company was taken over I would assume from what you are saying that this person was transferred to the new company. In this instance ALL the terms and conditions of his old contract go with him along with his service years. The only way that changes can be made to his contract is through negotiation and agreement. For instance on day one the new employer can't say all my staff work a 40 hour week, you were on a 35 hour week but now you have to do 40 hours. This would be unfair in law.
Overtime does not have to be shared equally between the employees and it would make business sense to use those that were best able /most efficient to do it, however it is usually those that are willing.
If the contract that this person is on is more favourable than his colleagues I would advise him NOT to transfer onto a new contract or even to alter his terms at this stage.
The first thing I would do is to go above his line manager to clarify if he is being overlooked for overtime for any particular business reason and see what the response is.
I am signing off now to get some sleep but will look back again tomorrow to see if there is any other help I can give
GE

Thanks for all the replies.

GE - I will tell him to go see the person above the line manager. It is difficult to explain without giving too much away but the line manager is there all the time and the next level of management only pop in occasionally so I'll get him to make an appointment to see him.

Many thanks