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When the clocks go back, the first hour of Sunday is essentially repeated. Your client can choose how they treat this extra hour, subject to any contractual entitlements, but should act consistently and fairly.
The most straightforward option is to require staff to work the extra hour in October and allow them to go home an hour earlier when the clocks go forward in March. This will cancel out the extra hour worked.
However, contractual wording may mean this is not so straightforward. Below we set out different scenarios your client might encounter.
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 8 am. As a result, their usual eight-hour shift will, for one day only, become a nine hour shift.
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 they are salaried, generally they would receive their normal salary regardless of whether they work extra. However, if your client pays overtime for additional hours this may mean the employee needs to be paid for this time. Your client should also be careful to ensure their salaried workers still receive 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 minimum entitlement.
2. The contract states that the shift lasts for eight hours starting from 12am.
Whilst usually the employee here would work until 8 am, this wording allows them to leave at 7am instead and still work their eight hours.
As its likely another employee will be taking over from them when they leave, that employee will need to start an hour earlier. Alternatively, your client could agree with the first employee that they will work the extra hour and leave at their normal finishing time. As above, they may need to be paid for this.
3. The employee agrees to work the extra hour, but this will mean their average working hours overnight will be over eight.
All night workers must not work, on average, more than 8 hours in any 24-hour period within a given reference period. Therefore, by agreeing to work the additional hour, their working hours will be in breach of the Working Time Regulations 1998 (WTR).
As 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), 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
Your client should decide now how they are going to manage the clocks going back and inform their employees. Practically, they may also want 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 resulting lateness.
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