Warning at work for not doing overtime

karenw

I'm posting on behalf of my sister.

She has worked for a well known high street shop for 5 years, she has done the same hours for 3 years. Recently her boss told her she had to do overtime and my sister didn't want to as she had plans, so she refused.

She has gone into work today and her boss has issued her with a written warning for not doing the extra hours.

What she wants do know is...

1 Is this legal?

2 Does she have to sign the the written warning and what happens if she doesn't?

3 Can her boss make her do overtime?

DVardysShadow

1] Yes, but largely meaningless. Boss could give me a written warning, it would be meaningless
2] No she does not have to sign and if she does not want to, she should not.
3] Assuming there is no provision in her contract for the employer to require her to do overtime, then no

Bear in mind that someone will be along to say that the employer can change her contract. This is true. But you need to work out whether this action arises from the boss or from the employer. If it is just the boss, it is unlikely that the employer will change the contract.

She should consider joining a union. Representation on issues like this makes it much harder for maverick bosses to initiate spurious disciplinary processes.

agrinnall

Two things in addition to what DVS has said (well, one and a half really as he's already mentioned one).

1) What does your sister's contract of employment say about overtime? From what i have seen in other threads some do state that if overtime is required it has to be worked.

2) As it's a well known High Street shop I would assume they have a head office with a HR department, she should contact them to find out whether they think she has to work overtime.

donnajunkie

basically if they require overtime and get stroppy if you dont then you must do it or sooner or later you will be gone. it may or may not be possible to challenge disciplinary action related to overtime but after that they will just get wise and get rid of you for some other reason. unfortunately there are some employers who refuse to accept some people want to have a life. the best thing to do is get another job if you can.

miss_homme

What bothers me is that she's gone straight to a written warning. I thought you had to receive a verbal warning first.

donnajunkie

miss_homme wrote: »

What bothers me is that she's gone straight to a written warning. I thought you had to receive a verbal warning first.

yes it should be a verbal warning first but you can find that people get a verbal warning without realising because when it happens they dont say this is an official verbal warning.

Pete111

donnajunkie wrote: »

yes it should be a verbal warning first but you can find that people get a verbal warning without realising because when it happens they dont say this is an official verbal warning.

Not quite. If you are issued with a formal warning of any sort it needs to be in writing. Even a 'verbal' one!

In most cases - certainly with a big high st store - there will be a company policy regarding disciplinaries that will involve some form of formal process leading up to the warning. Looks like this hasn't been followed and even after the repeal of the statutory dispute regs last year, employers are advised to follow the ACAS code or face a disadvantage when defending an unfair dismissal claim. This may be useful if it gets to that.

As an aside, an employer can issue a written or even final warning straight off the bat. (though as above, usually after a process) they just need a good rationale. The employer might argue that disobeying a direct instruction merits this...though I think they may be on shaky ground trying to enforce non-contractual hours via disciplinaries. It may depend on the contract wording re OT however.

Anyone got any relevant case law re this type of issue ?

donnajunkie

Pete111 wrote: »

Not quite. If you are issued with a formal warning of any sort it needs to be in writing. Even a 'verbal' one!

In most cases - certainly with a big high st store - there will be a company policy regarding disciplinaries that will involve some form of formal process leading up to the warning. Looks like this hasn't been followed and even after the repeal of the statutory dispute regs last year, employers are advised to follow the ACAS code or face a disadvantage when defending an unfair dismissal claim. This may be useful if it gets to that.

As an aside, an employer can issue a written or even final warning straight off the bat. (though as above, usually after a process) they just need a good rationale. The employer might argue that disobeying a direct instruction merits this...though I think they may be on shaky ground trying to enforce non-contractual hours via disciplinaries. It may depend on the contract wording re OT however.

Anyone got any relevant case law re this type of issue ?

it was 20 years ago the only time i ever got a verbal warning. i guess the rules have changed since then. i didnt realise until i got a written warning and enquired why i hadnt had a verbal warning. that was at a bad company that expected people to do overtime whether they wanted to or not. guess what the verbal warning was for? it was for going to wash my hands too early. there were 3 other workmates stood there also washing their hands and nothing was said to them.

Pete111

donnajunkie wrote: »

it was 20 years ago the only time i ever got a verbal warning. i guess the rules have changed since then. i didnt realise until i got a written warning and enquired why i hadnt had a verbal warning. that was at a bad company that expected people to do overtime whether they wanted to or not. guess what the verbal warning was for? it was for going to wash my hands too early. there were 3 other workmates stood there also washing their hands and nothing was said to them.

Ah the 90's... much less red tape

an9i77

You don't have to get a verbal warning before a written warning. You can go straight to written, or final warning depending on the severity of the case.
Most contracts will say that you may be required to work overtime on occasion and so long as it is not happening regularly the employer would be within their right to enforce that. But they'd have to give reasonable notice ie not just spring it on people. I don't know how much notice they gave your sister, it sounds like they were not being very flexible though.
Has she appealed the warning?
To answer your questions.
1. It may be legal if stated in the contract and not asked for on a regular basis (ie if on a weekly basis this may amount to a breach of her contractual ts and cs)
2. I don't think it matters whether she signs the warning or not, it will still go on her file
3. Her boss can certainly make life difficult for her if she doesn't do it. If asked again and she doesn't do it, she'll be on a final written warning and after that she'll be out of a job so i guess from that stance its a yes. But let us know what her contract says.

Probi

She should also have been given information on her right to appeal, for each warning you are given the right of appeal within 7 days normally by writing a formal letter to the company (i guess this would be HR) if she believes the warning is unfair then she should appeal.