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Getting ready for the clocks to go back!

This coming Sunday, 29th October 2023, British Summer Time comes to an end, and we move towards the darkest time of the year. For some, it will mean an extra hour in bed. But what about those who are working, or due to start work, during that extra hour? And what is the fairest way to deal with them?

The law and the clock change
When the clocks go back, the first hour of Sunday 29 October is essentially repeated. No, it’s not time travel, but a leftover from a time when much more of our day- to-day lives were dictated by the rise and set of the sun. This means that those working over that time could end up having to work for an extra hour, depending on their contractual wording.

Organisations can choose how they treat the extra hour, subject to any contractual entitlements, but should act consistently and fairly. One way to achieve this is if they require staff to work the extra hour in October, they could allow employees to go home an hour earlier when the clocks go forward in March. This will cancel out any extra hours worked over the year.
Ahead of the day, organisations should review the wording of their employees’ contracts to see what they have to do about this.

Below, we set out scenarios to demonstrate the impact the clock change has on pay:

1. The contract states that the employee’s shift starts at 12am and finishes at 8am – With this wording, the employee will be required to stay at work until 8am. The effect of this is that their usual eight-hour shift will, for one day only, become a nine-hour shift.

The implications
The employee is likely to expect another hour’ pay for this work.
Where the contract states they are entitled to hourly pay for every hour worked, they will be owed additional pay for working that extra hour.
If instead they are salaried, generally they would receive their normal salary regardless of whether they work extra. However, organisational overtime rules may mean the employee needs to be paid for this time. Also, salaried workers still need to receive the legal minimum wage for this period so, where they are paid on or just above minimum wage, they may have to be paid the extra hour to receive their legal minimum entitlement.

2. The contract states that the shift lasts for eight hours starting from 12am
Whilst usually the employee in this scenario would have to stay at work until 8am, this wording allows them to leave at 7am instead. In doing this, their usual eight hours of work is maintained, as they will have worked eight hours. It is possible to agree with the employee that they will work an extra hour and leave at their normal finishing time.

The implications
If the nature of their job is such that another employee takes over from them, for example shift work in a care home, the employee starting after them will need to start an hour earlier than normal to ensure the work is covered, if the employee already working refuses to stay on.

3. The employee agrees to work the extra hour, but this will mean their average working hours overnight will be over eight
Night workers must not work, on average, more than 8 hours in any 24-hour period within a given reference period. Therefore, this scenario means that by agreeing to work the additional hour, their working hours are in breach of the Working Time Regulations 1998 (WTR).

The implications
Employees cannot waive their right to the restriction on their average night time working hours (although the reference period can be extended under a relevant agreement). As such, whilst the employee is in agreement, to allow them to work the extra hour would be a breach of the WTR for which the employer could be liable to formal action under those regulations.

Next steps
Now is the time for employers to decide how they want to manage the upcoming clock change, and inform their employees of the organisational position. Practically, it is also recommended to pre-warn workers scheduled to work on Sunday about the clocks going back to ensure they attend work on time. This should help to avoid confusion on the day, and any lateness that may be attributed to it.
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