On Sunday, 29 October 2023, British summertime comes to an end. For many, it will mean an extra hour in bed. But what about those who are working, or due to start work, during that extra hour? 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 29th October 2023 is essentially repeated. This means that for those working during that time may end up having to work for an extra hour, depending on the wording in their contract of employment.
Organisations can choose how they treat the extra hour, subject to any contractual entitlements, but need to act consistently and fairly. One way to achieve this is to provide an hour of in lieu - if staff are required to work the extra hour in October, they could be allowed to go home an hour earlier when the clocks go forward in March. This will cancel out the extra hour worked over the year.
Organisations should be prepared ahead of the day to be clear about how they will deal with the clock change, depending on the wording of their employees’ contracts.
Below, we suggest possible impacts the clock change may have on working hours and pay:
The contract states that shifts last for eight hours starting from 12am.
Whilst usually the employee would have to stay at work until 8 am, this contract wording allows them to leave at 7am instead. This means their usual eight hours of work is maintained, as they will have worked eight hours. Employers can negotiate with staff that they will work an extra hour and leave at their normal finishing time, by agreement.
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 at 8am would need to start an hour earlier than normal to ensure the work is covered, if the employee already working declines to stay on.
The contract specifies 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 8 am. This means their usual eight hour shift will, for one day only, becomes a nine hour shift.
The employee is likely to expect an additional hour of 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, however they are salaried, they would be paid their normal salary regardless of whether they work extra time. However, organisational overtime rules could mean the employee needs to be paid for this time.
It’s worth noting that salaried workers still need to receive the national 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 maintain the national minimum wage.
The employee agrees to work the extra hour, but this means their working hours overnight will be in excess of eight hours.
All night workers must not work, on average, more than 8 hours in any 24-hour period within a given reference period. This would mean that by agreeing to work the additional hour, their working hours are in breach of the Working Time Regulations 1998 (WTR).
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 agrees, to allow them to work the extra hour would be a breach of the Working Time Regulations for which the employer could be liable to formal action under those regulations.
Things to consider
It’s not quite so simple as winding the clock back! Now is the time for employers to decide how they want to manage the upcoming clock change and clarify the organisational position, reminding employees about the clocks going back to ensure they attend work on time if due to work on Sunday.