This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

Chapter 27
MODEL CONTRACT OF EMPLOYMENT

BEING CLEAR ABOUT OVERTIME PAY

Added 24/1/12. This information updates s.27.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
If an employee is or might be required to work overtime, the arrangements for the overtime and for overtime pay (if any) must be included in the statement of particulars required under the Employment Rights Act 1996. If the pay arrangements (or an alternative, such as time off in lieu) are not specified, a court may imply a "reasonable sum" for overtime pay into the contract.

In Driver v Air India, a case involving an airline catering services manager, Driver's contract said he could be required to work overtime, and said the details would be set out in notices and circulars. However such documents were never provided to Driver, nor were they produced in court when he brought claims against the company.

Driver had worked for Air India in Frankfurt from 1972 to 1997, and then at Heathrow. He regularly worked overtime, and was generally paid for this until December 2001. When overtime payments stopped in 2002, he raised a number of grievances about this and other issues, until leaving the company in January 2007. During that period a committee set up by Air India to investigate his claims and make recommendations found that Driver was a conscientious and effective worker who had saved the company money and that he did the overtime only when it was legitimately necessary (for example, to meet a landing plane on his day off), and recommended that he should be paid. However, the employer still failed to pay for the overtime.

Driver brought a claim in the high court, which found in favour of Air India and Driver appealed. One of Air India's arguments was that the overtime working had to be authorised in advance; the court of appeal said the contract as worded did not require this, and in any case the overtime working was essential rather than just a failure to fit the required work into the contractual hours, and in many cases his overtime pay claims had been signed by his manager. The court also noted that Air India had paid for overtime in the past, and even when responding to Driver's grievances had never said he did not have a right to overtime pay. The court of appeal, finding in favour of Driver, awarded him more than £77,000 overtime pay, plus interest.

The court of appeal decision in Driver v Air India is at www.bailii.org/ew/cases/EWCA/Civ/2011/830.html.

This was a complex case, with a number of very specific circumstances, so everyone who thinks they are owed overtime pay shouldn't get too excited. However, the case does appear to indicate that even where a contract does not specify the amount of overtime pay, there may be an implied entitlement to such pay if the contract says that overtime working is or might be required; the contract does not state that overtime working must be authorised in advance (or, if it does say this, the overtime working has been authorised as required); the overtime is necessary for specific ad hoc tasks rather than just because there is too much work to do within the normal working hours; the overtime is recorded at the time it is taken and overtime pay is claimed promptly; and the claim is not explicitly rejected by the employer.

TUC GUIDANCE ON DRUG TESTING

Added 7/11/10. This information expands s.27.5.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Although drug testing is regularly used by employers in safety critical areas such as transport, energy generation and construction or after an incident, it is generally rejected by other employers because of cost, union objections, or doubts over its effectiveness.

In its Drug testing in the workplace guidance, published in May 2010, the TUC agrees that drug use in the work place must be tackled but says that random drug testing is of "dubious legality", and employers need be very clear about their reasons and methods before undertaking such tests. The guidance is at www.tuc.org.uk/h_and_s/tuc-18000-f0.cfm.

The TUC recommends a drugs and alcohol policy as an effective way to combat drug use, which further supports the employer's duty to protect workplace safety. ACAS's Health, work and wellbeing, updated in September 2010 and available at www.acas.org.uk/CHttpHandler.ashx?id=854, includes checklists of elements of a good drugs and alcohol policy.

In addition to health, safety and capability issues, public sector bodies have to abide by the Human Rights Act 1998, which gives a right to privacy and dignity which many people believe is breached by drug testing. Such bodies may require organisations which they fund, or from which they purchase services, to comply with the HRA.

Even where the HRA may not directly apply, the Information Commissioner's Office's employment practices code covers employees' privacy and data protection, and puts strict limits on the health information that can be obtained by employers. The ICO code says that random testing of all workers "will rarely be justified".

The ICO's quick guide to its employment practices code can be accessed via tinyurl.com/2e2ycl. The full code is at tinyurl.com/qochx. Supplementary guidance, including detailed guidance on medical, drug, alcohol and genetic testing, is at tinyurl.com/6ht8oc.

An additional legal factor is that employment tribunals have ruled that an employer cannot dismiss someone simply because they have been found in possession of drugs outside the workplace.

Unless there is contractual obligation to provide a drug test sample, an employer cannot force employees to provide a sample of urine, hair, saliva or blood for any purpose.

An employer who decides to introduce a testing programme must ensure that:

• it is done by a laboratory accredited by the UK Accreditation Service;
• it is part of an effective and agreed workplace drug and alcohol policy which aims at supporting any person with a drug or alcohol problem;
• it is only done after impairment testing has been carried out and there is evidence that the person may be impaired as a result of drugs;
• no samples are taken without the informed consent of the person, and this consent was not given under duress;
• there is an appeals process, with right to union representation, for anyone who tests positive.

SANDY ADIRONDACK
Governance and legal training and consultancy
for the voluntary sector
39 Gabriel House, 10 Odessa Street, London SE16 7HQ
Tel 020 7232 0726; fax 020 7237 8117
Email:
Web: www.sandy-a.co.uk