Unpaid overtime is when you work longer than your regular hours (those fixed by your contract) and do not receive any pay for the extra hours you have worked. According to a report published by the Trades Union Congress in early 2024, employers in the UK received £26 billion in free labour in 2023 from employees working overtime without pay.
If you are one of the many people working overtime and not being paid for those hours, read on to understand your legal rights and how to claim back the pay you are owed.
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Unpaid Overtime: Your Rights
Unless your contract specifically includes an agreement to work hours overtime, you do not have to work beyond the regular hours expected of you. There is also no legal requirement that employers offer extra hours to workers. In fact, if there is nothing in your contract about overtime hours, workers legally cannot work more than the 48-hour working week established in the Working Time Regulations 1998.
However, many employees do expect employees to work overtime, especially those involved in healthcare, hospitality or retail, where working hours are often changed to meet the demands of patients and customers. In these cases, your contract should contain comprehensive information on when you might be expected to work overtime and whether you will be compensated appropriately. The contract may include details such as:
- when or if you will given paid overtime
- whether payment will be financial or Time Off In Lieu (abbreviated to TOIL, where you get annual leave instead of extra pay)
- if overtime is voluntary or mandatory
- if there are criteria you must meet to be eligible for overtime
Overtime and the National Minimum Wage or National Living Wage
If you are paid around the threshold of the National Minimum Wage or National Living Wage, be aware that your minimum hourly rate applies regardless of whether you are working overtime or not. In some cases, employees find that they are asked to work overtime but their pay is not changed, meaning that their hourly rate becomes lower than the national minimum wage. This is illegal. Employers must pay you the national minimum wage for all your work hours.
Legal Considerations
There are several pieces of legislation covering employee rights in the UK:
Working Time Regulations 1998
- sets the maximum hours an employee can work per week at 48 unless the employee voluntarily chooses to opt out of this limit
- employees under 18 cannot work more than 40 hours in a week or 8 hours in a day
- employees can work over 48 hours per week as long as their average of a 17-week period is not greater than 48
- ‘working time’ means any time spent on tasks related to the role, including preparation or cleaning up, travelling if the travel is part of their duties and training
- travel to and from the workplace and home and rest periods within the working hours are not included in working time, although employees are entitled to a 20-minute rest for every six-hour shift
Employment Rights Act 1996
- establishes the right to have a written statement (contract) which includes details on terms and conditions of employment, including overtime provisions
- covers the right to get paid for work done, making it a breach of contract if an employer does not compensate you for work you have done, including overtime
- includes the right to request flexible working once you have been with an employer for 26 weeks
National Minimum Wage Act 1998
- protects the rights of workers to be paid a minimum wage on an hourly basis, regardless of how many hours they work
Claiming Back Unpaid Overtime
If you have worked overtime and have not been paid, you are within your rights to claim the pay you are due. The following steps are a good way to approach this:
Informal Discussion
First, start by having an informal discussion where you alert your employer or HR department to the issue. There may be an administrative error or a misunderstanding that has resulted in you not being paid for overtime you have done.
Make a Formal Complaint
If you find that addressing the issue informally does not get to a resolution, you will need to use the company’s grievance policy to make a formal complaint. Your employer should be able to provide details on how you file a complaint. When you make a formal complaint, your employer is forced to address the issue more seriously.
Ensure you include all relevant details, including evidence of the hours you have worked overtime without being paid, any communication (including texts and emails) and any written agreements you have (including your contracted hours).
Talk to Acas
Acas is the Advisory, Conciliation and Arbitration Service, providing free, impartial advice on workplace rights, rules and best practices. They can advise you on your legal rights and how to proceed if there are issues with your formal complaint.
Use the Employment Tribunal
If you can’t reach an agreement with your employer using Acas, you can file a claim with the Employment Tribunal. The Employment Tribunal is an independent body that rules on legal disputes related to employment, including overtime. It can rule on cases involving employers who fail to pay for overtime, do not meet the National Minimum Wage Act requirements and breach of contract over working hours.
Claims made to the Employment Tribunal need to include evidence of hours worked, payslips, communication between employees and employers regarding overtime and also contact information.
FAQs
How much overtime pay can I claim?
If your employer has continuously avoided paying you for overtime, you can claim up to two years of unpaid overtime. However, there are rules and restrictions in place. How much you can claim is impacted by the hours you work, your rate of pay and whether the lack of pay has significantly impacted you.
Is there a time limit for when I can claim overtime pay?
If you are using the Employment Tribunal, you must file your claim within three months minus one day of the latest day you were underpaid for the overtime you did.
What if my employer refuses to pay my overtime?
If your employer refuses to pay for overtime, the first step is to raise it with them directly – or with the HR department if your company has one. If this does not resolve the issue, the next step is to use the company’s grievance policy to make the matter a formal complaint and seek advice from Acas if that still doesn’t work. You can take a claim to the Employment Tribunal as a last resort.
What should I do if my employer says I am not entitled to overtime?
There is no legal obligation for employers to provide overtime for their employees. The law protects employees from being forced to work too many hours. If your employer wants to work extra shifts, there should be a written agreement between you and them stating the terms and conditions under which you will do the additional work.
I get paid a salary. Does overtime pay still apply to me?
Yes, overtime pay applies to all roles where employees work more than their regular work hours, regardless of how their pay is structured and how they receive it.
Should my holiday pay reflect any overtime I work?
According to the Trades Union Congress, your holiday pay should be based on the regular hours in your contract and should not be linked to any extra income you receive from overtime.
