Discretionary, non-discretionary

ChrisMunro20

On my employee handbook it’s states the following quote for overtime

”there will be times when it is necessary for you to work additional hours to those quoted in your contract statement and it is a condition of employment that you are willing to do so, when requested. Payment for authorised overtime working will be as detailed in your contract statement,”

can someone please tell me if this is discretionary or non discretionary?

thanks in advance. 

Jeremy535897

Non-discretionary.

ChrisMunro20

They have said that the company lawyer says that that isn’t the case, what can me and other employees do to get this checked, a lot of angry people in the workplace. Is there anywhere to seek legal advice ?

Grumpy_chap

CAB next call

sharpe106

Ask them to get the lawyer to explain why and then call CAB if not satisfied with the answer.

Jeremy535897

From guidance:

"Non-discretionary payments

When you’re working out if a payment is non-discretionary, only include payments which you have a contractual obligation to pay and to which your employee had an enforceable right.

When variable payments are specified in a contract and those payments are always made, then those payments may become non-discretionary. If that is the case, they should be included when calculating 80% of your employees’ wages.

Non-discretionary overtime payments

If your employee has been paid variable payments due to working overtime, you can include these payments when calculating 80% of their wages as long as the overtime payments were non-discretionary.

Payments for overtime worked are non-discretionary when you are contractually obliged to pay the employee at a set and defined rate for the overtime that they have worked."

See https://www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme

Undervalued

Discretionary - in what way?

Clearly the overtime has to be paid but are you asking / assuming it will be at a higher rate? Nothing in law says that overtime has to be at an enhanced rate. So unless your contract says otherwise they could possibly use discretion to pay it at the normal rate or maybe even less than normal!

ChrisMunro20

Undervalued said:

Discretionary - in what way?

Clearly the overtime has to be paid but are you asking / assuming it will be at a higher rate? Nothing in law says that overtime has to be at an enhanced rate. So unless your contract says otherwise they could possibly use discretion to pay it at the normal rate or maybe even less than normal!

We have set rates ie time and a half for overtime worked and double time on sundays. My work are saying they can’t claim for overtime to work out our furlough, our overtime varies every single week so every weeks payments are different also rotating fortnightly for dayshift and nightshift for 5 years +. And for the past 7 weeks was %80 of just my daily basic hourly rate times my contractual hours.

Jeremy535897

ChrisMunro20 said:

Undervalued said:

Discretionary - in what way?

Clearly the overtime has to be paid but are you asking / assuming it will be at a higher rate? Nothing in law says that overtime has to be at an enhanced rate. So unless your contract says otherwise they could possibly use discretion to pay it at the normal rate or maybe even less than normal!

We have set rates ie time and a half for overtime worked and double time on sundays. My work are saying they can’t claim for overtime to work out our furlough, our overtime varies every single week so every weeks payments are different also rotating fortnightly for dayshift and nightshift for 5 years +. And for the past 7 weeks was %80 of just my daily basic hourly rate times my contractual hours.

They are confusing two things; the method of working out your reference salary, and what to include in it.

Based on what you say, the method is the one used for variable pay, because you don't get a fixed monthly amount. The method for variable pay workers is as follows:

"Employees whose pay varies and were employed from 6 April 2019

If the employee has been employed continuously from the start of the 2019 to 2020 tax year, you can claim the highest of either:

• 80% of the same month’s wages from the previous year (up to a maximum of £2,500 a month)
• 80% of the average monthly wages for the 2019 to 2020 tax year (up to a maximum of £2,500 a month)"

As per my earlier post, the figure for wages should include both basic and overtime.