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Can I insist that my employee works overtime during our busy periods?

Most of our clients are small businesses and they often experience peaks and troughs in their workloads. We often have to advise on whether an employer can reasonably ask an employee to work overtime, even if they don’t want to. The answer is yes, provided your contract allows for this.

Most of our clients are small businesses and they often experience peaks and troughs in their workloads. We often have to advise on whether an employer can reasonably ask an employee to work overtime, even if they don’t want to. The answer is yes. Provided your contract allows for this.

In a recent tribunal case Edwards v Bramble Foods Ltd an employee has lost her claim for unfair dismissal after being dismissed for refusing to work a reasonable amount of overtime to cover a busy period. Bramble Foods pack premium food products and experience a peak demand during the eight weeks before Christmas. In September 2015 they asked all employees to sign up to work between four and eight Saturday morning shifts during the busy period. All employees agreed to work at least four additional shifts, with the exception of Mrs Edwards who refused to work any.

Bramble had made it a condition of their employment that "you are expected to work such further additional hours as may be reasonably necessary to fulfil your duties or the needs of the business." They tried to have several chats with Mrs Edwards to explain that she was the only employee who had refused and that this was unfair on the other employees. Mrs Edwards’ reason for refusal was that she spent Saturdays with her husband. Following the refusal her behaviour then became disruptive and complaints were received that she had been mocking those who were going to be working overtime. A number of employees threatened to refuse to work overtime if she was excused.

Following a disciplinary proceeding Mrs Edwards was dismissed for unreasonably refusing to comply with the terms of her employment and/or a reasonable management instruction as well as inappropriate and unacceptable conduct towards a fellow employee. Mrs Edwards took her case to tribunal and lost. Why?

The tribunal considered that it was reasonable to require Mrs Edwards to work some overtime and that her refusal and her behaviour following that refusal was having an adverse effect on Bramble Foods and their workforce.

This case serves as a reminder that a well drafted contract is essential for small businesses who need to rely on a degree of flexibility from their workforce during busy times. Had Bramble Foods not had this they would not have been in a position to manage Mrs Edwards’ refusal.

Dismissal is always a last resort in these cases. Our advice to our clients would be:

Be reasonable – when asking employees to agree to overtime are you asking for too much and are you giving them enough notice. If they give a good reason why they can’t do it are you being fair in insisting that they do?

Be consistent – are you asking everyone to put in extra hours or singling people out? A lack of consistency could lead to disgruntled employees or possibly a discrimination claim.

Be nice – you might be entitled to ask them to work, but try to accommodate the employee’s wishes where you can. If you can be flexible with them they are more likely to be flexible with you.

myHRdept have been constructing bespoke employment contracts for clients since 2002 and will take the time to write your contract carefully. From only £250 our contract drafting services are often less than a third of the costs of a lawyer drafted contract. Alternatively, contract drafting is included in the price of all of our Premium Plus retained packages.

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