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Time Off in Lieu When Working Additional Hours

By: Maggie Lonsdale BA (hons) - Updated: 15 Aug 2017 | comments*Discuss
 
Employee Employer Working Company

Taking time off if you have worked overtime or additional hours is a common practice and is often referred to as ‘TOIL’ – time off in lieu.

TOIL is especially common in highly paid roles where the employee in question is often likely to appreciate the time off rather than additional money. However, regardless of the position or seniority of the employee, TOIL must be agreed in writing by the employee and the employer. It cannot be assumed or enforced by either side, which is important to note if you are being expected to work overtime and are being given TOIL or money when you would prefer the opposite.

EU Working Time Directive

It is worth noting that there is actually no legal right to be paid for extra hours worked, with no minimum overtime entitlement, although payment must not be less than the Minimum Wage. TOIL is part of the EU Working Time Directive, of which a central theme is that no employee can be made to work more than 48 hours a week without prior written agreement.

If there is such prior written agreement, signed by both the employee and the employer, the method of either payment or TOIL can be agreed between both parties. Many companies will have their own rules, which must be set out in the employers' handbook or be available from your HR department. For specific TOIL rules, companies will either have a set company stance (this need not be the same for everyone, although should be for people on the same grade/level/job title etc) or confirm it on a case-by-case basis.

Contract Clauses

To avoid workers simply taking loads of time to do something that they should be able to do comfortably within their working week, or to avoid workers having weeks of extra holiday available (which can cause staffing issues and/or operational issues) the written agreements usually included clauses.

Such clauses are usually related to how many additional days can be accrued and when these additional days must be taken by, such as ‘no more than three days can be rolled-over into the following year’ or ‘no more than one day each month can be accrued through TOIL’. Again, these clauses must be open and approved by both parties.

Time off in lieu of working additional hours is both a popular and common way to reward extra hours, although companies tend to prefer this when there is someone else to cover your work while you are taking your time off, or if the time can be taken at a reasonable time that will not affect the business, such as between Christmas and New Year.

Check Your Contract

As the employee, it is important that you make yourself aware of your Employment Contract. As the employer, you must ensure you are clear about what you are offering to workers that work more than their agreed hours. It is terribly frustrating to think that you will get more in your pay packet after a bumper month's work only to be given extra holiday that you don’t really want, or to be thinking that you’ll be able to take an extended holiday from all the TOIL accrued to be told that you have lost your entitlement because you did not take it in time. Check your employment contract and clarify it with HR.

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My employment contract in 27.75 hrs but it also adds must work 'hours required of the job'. This appears to benefit the employer, with being told to work extra hrs without pay and weekend work at peak times. Should I be able to request the time back? I work in Northern Ireland
Stef - 15-Aug-17 @ 7:24 PM
Hi, We are going through a change in contract. Can an employer remove our TOIL days (that we get after being on call at a weekend) to work them but not get paid our hourly rate on those days? So we will be working 2 8 hour days extra ( ×10 8h days in the year) without being paid our standard hourly rate. We will get a £20 retaining fee for Sat/sun but that us for being on call, as they have totalled that up and added that to salary, the company feels they shouldn't be paying us for those 2days we are actually working. Can they do this? Any help will be appreciated Thanks
Steph - 8-Aug-17 @ 7:36 AM
Can your employer refuse a lieu day off the you have accurred?
Ross - 13-Jul-17 @ 12:54 PM
Can your 11hr rest break be taken away by toil! I.e work from 9 till midnight. Then turn up to work at 11am the next. Can the employer take your toil away as you were not in work at 9am!
Djlee - 12-Jul-17 @ 2:14 PM
Niner - Your Question:
HiWonder if anyone can help. I work in a school as full time term time only support worker, my tasks are such that I cannot carry them out in the 37.5 hours that I am contracted for. I regularly work around 3 to 4 extra hours per week by starting early and finishing late. I must do the extra work to satisfy health and safety concerns and maintain workshop equipment as I am in the classroom most of the day.My question is am I entitled to TOIL or over time as a term time only contract and if so are the school allowed to refuse.Thanks

Our Response:
You would have to read the terms and conditions of your employment contract to see if you are entitled to TOIL. Otherwise, you would have to discuss the matter directly with your line manager. There is no law to say your employer has to offer TOIL as a response to working overtime. Employers can request that an employer may have to work unpaid overtime in order to complete any tasks, as part of their contract.
WorkingRights - 7-Jul-17 @ 12:41 PM
Hi Wonder if anyone can help. I work in a school as full time term time only support worker, my tasks are such that I cannot carry them out in the 37 .5 hours that I am contracted for. I regularly work around 3 to 4 extra hours per week by starting early and finishing late. I must do the extra work to satisfy health and safety concerns and maintain workshop equipment as I am in the classroom most of the day. My question is am I entitled to TOIL or over time as a term time only contract and if so are the school allowed to refuse. Thanks
Niner - 6-Jul-17 @ 7:13 PM
NO1TERRY - Your Question:
Hi there, I travel a lot with work, maybe 8 times a year. Generally, each trip will include a long-haul flight to Asia (fly Saturday, land Sunday) then work a 5 day week of around 10-12 hours a day, followed by a return flight landing back in the UK on a Sunday.So each trip effectively takes 2 weekends away from me – is there any law as to hours worked, or days back in lieu I should for this? My work contract states working overseas, and at weekends, but there is no stipulation of any days in lieu. We are devising a new plan for days in lieu and I want to see if there are any laws we should be aware of? Or if I should be able to claim back a minimum from the weekend days worked.Thanks,

Our Response:
You would have to speak to your employer directly regarding this, as it is company-specific.
WorkingRights - 6-Jul-17 @ 2:37 PM
Hi there, I travel a lot with work, maybe 8 times a year. Generally, each trip will include a long-haul flight to Asia (fly Saturday, land Sunday) then work a 5 day week of around 10-12 hours a day, followed by a return flight landing back in the UK on a Sunday. So each trip effectively takes 2 weekends away from me – is there any law as to hours worked, or days back in lieu I should for this? My work contract states working overseas, and at weekends, but there is no stipulation of any days in lieu. We are devising a new plan for days in lieu and I want to see if there are any laws we should be aware of? Or if I should be able to claim back a minimum from the weekend days worked. Thanks,
NO1TERRY - 5-Jul-17 @ 11:06 AM
Hi, I work in retail and could not work today or tomorrow as the shop has been damaged by a fire and it is closed. My boss has said I should work these days in lieu (or at least one of them) next week after discussion. I do not think that I should have to do this as surely the company (which is a large one) will be insured for loss of business and it is not my fault and actually, an inconvenience. Where do I stand? I cannot find anything on this in my contract. Many thanks.
foxy - 1-Jun-17 @ 12:05 PM
MissE - Your Question:
I work in retail as a manager for a company. I worked with them for 10months and will finish working my noticd in a few days. I am also over over 40hours in lieu because I was unable to takw the time back as there was no one to cover the shifts.Would I be paids foe these hours?Please help.Thank you

Our Response:
You would have to speak directly to your HR dept or line manager. We cannot comment on this as it depends upon your individual company policy.
WorkingRights - 24-May-17 @ 1:35 PM
I work in retail as a manager for a company. I worked with them for 10months and will finish working my noticd in a few days. I am also over over 40hours in lieu because I was unable to takw the time back as there was no one to cover the shifts. Would I be paids foe these hours? Please help. Thank you
MissE - 24-May-17 @ 4:32 AM
@LJB - if your contract is for 20 hours then you are tied into that contract. You need to read the terms of your contract - it's you that opted out and consented to do extra hours. You should ask your employer to change your contract if you will be doing this indefinitely.
Kate - 17-May-17 @ 2:10 PM
My contract is for 20 hrs a week but for the last 11 months I have worked between 36-40 hours per week but everytime I take a holiday I'm only ever paid 20hrs, and if I work a 9 hour shift on a bank holiday I'm only allowed 4 hours back in lieu as my contract is for 20 hrs,is this allowed?
LJB - 16-May-17 @ 10:54 PM
I regularly accrue toil. My employer has started to dictate when I have to take this time back without discussion. Surely as this is something I am entitled to I should able to take it back when I want (within a time frame) and not purely at their discretion
Nicedevil96 - 6-May-17 @ 7:11 PM
happyworker - Your Question:
My contract says that I am based in Bedford and expected to travel to other locations occasionally. I am being sent to York (3 hours by car) regularly and have been told that this travel time is not part of my daily hours and therefore will not be paid or part of toil.Is they allowed to do this

Our Response:
Much depends upon whether the terms of your employment contract says your employer can make these changes and whether/how you will be paid in accordance with them and/or whether such travel is an integral part of your job. If you disagree, or think your employer is overstepping the terms of the contract, then you should speak to your employer directly regarding this.
WorkingRights - 27-Apr-17 @ 11:29 AM
My contract says that i am based in Bedford and expected to travel to other locations occasionally. I am being sent to York (3 hours by car) regularly and have been told that this travel time is not part of my daily hours and therefore will not be paid or part of toil. Is they allowed to do this
happyworker - 26-Apr-17 @ 3:31 PM
Karingblue - Your Question:
I work from 8.45am to 4.30pm each day with a lunch break. I have to travel abroard on sunday to be o a coure that starts on monday. My employer says that I am entitled to a day of accrued toil, i.e. working day hours which is 7.75 hours. However, I didnt arrive at my destination until 12 midnight. Should my employer be compensating from 4.30pm to 12 midnight in toil hours? An extra 7.50 hours?

Our Response:
As specified in the article, you would have to either read your contract to say what it specifies regarding TOIL compensation and how it works (it should be laid out clearly if it forms part of your job). Otherwise, it is something you would have to negotiate with your employer directly.
WorkingRights - 10-Apr-17 @ 10:28 AM
I work from 8.45am to 4.30pm each day with a lunch break.I have to travel abroard onsunday to be oa coure that starts on monday. My employer says that Iam entitled to a day of accrued toil, i.e. working day hours which is 7.75 hours. However, i didnt arrive at my destination until 12 midnight.Should my employer be compensating from 4.30pm to 12 midnight in toil hours?An extra 7.50 hours?
Karingblue - 9-Apr-17 @ 7:46 AM
I'm a direct employee who has been working for a company as an International Engineer for 6 months or so. I am expected to work away for 6 weeks or more at a time. I've signed an opt out of the WTD as I'm working an 80-110hr week. Hours over 47.5 per week are banked as lieu and either paid in my paypacket or used by the company to keep me at home when there "is no work". I am salaried, therefore I expected to be paid a 12th of my salary per month, then any overtime (accruied lieu hours) paid on top. It's become apparent that my employer is using these hours to keep me at home as and when they feel like it, then deducting my "overtime" from previous jobs to pay for my week at home. My questions are; 1. If I'm in a contract where I've committed myself to 47.5hrs per week and my employer has also agreed that my hours are 47.5 per week, are they committed to providing me with work for those hours? Or can they continue to deduct 47.5 hours from my previous overtime to pay for my week at home? 2. "Lieu hours" accruied. From what I can find, time off in lieu should be agreed between both parties at a time suitable to both. I am being told when to take time off regardless of whether it suits me or not. Could someone clarify my rights here? 3. Emails and telephone communications while on lieu; when I am at home, during time off in lieu, I'm expected to respond to emails and answer my work mobile, submit timesheets etc.. this is done during my time off, in my time. Has anyone any advice? 4. An occasion occurred during my last job where the customer informed me at the last minute, due to building inspections, I was not able to work over the weekend. I therefore submitted 2 days as "standby" (where im paid a minimum of 9.5hrs per day) on my time sheet. I was then told I must take one of theseas a "rest day" ( where I'm not paid). My question here is, surely, through no fault of my own, I should not be penalised for a decision made at the last minute by a customer? I was away from home, expected to work 6 weeks start to finish which is fine, but then I've lost a days earnings.
Mr B - 31-Mar-17 @ 10:04 AM
I have just had my contract which states 'The annual leave entitlement is 5.6 weeks per year based on your average weekly hours of 40 per week, including time of in lieu of bank holidays ' What does this actually mean?? Thanks
Help - 8-Mar-17 @ 9:09 AM
Tobysmith - Your Question:
HelloLast year I suffered from severe back problems. I was using up a lot of my holiday and using sick days to cover being off. the company also allowed me to take time off as toil and as such I now owe 40 hours to them. Much of this time was in Jan and Feb 2016 which was over a year ago and I was told that if the company had not made me pay back this took within a year then it should be wiped. Is their a set rule as to how long company's can keep toil you owe them?

Our Response:
I'm afraid you would have to find this out from your company directly. We do not have this information.
WorkingRights - 28-Feb-17 @ 12:19 PM
Hello Last year I suffered from severe back problems. I was using up a lot of my holiday and using sick days to cover being off. the company also allowed me to take time off as toil and as such I now owe 40 hours to them. Much of this time was in Jan and Feb 2016 which was over a year ago and I was told that if the company had not made me pay back this took within a year then it should be wiped. Is their a set rule as to how long company's can keep toil you owe them?
Tobysmith - 27-Feb-17 @ 7:48 PM
KM - Your Question:
I have worked for my employer for 9 years and have always been given 6 lieu days per year (in addition to annual leave) as recognition that we could be called out at anytime for emergencies at work. We are not on call and can refuse if not convenient but have always had the lieu days. We have just been informed that they are taking away these lieu days and instead will pay us a sum of money if we attend a call out. Can my employer legally just take these days away from us?

Our Response:
Much depends upon what is in your contract and whether there is a clause saying your employer can make such changes. You would have to read your contract to find out.
WorkingRights - 27-Feb-17 @ 2:31 PM
I have worked for my employer for 9 years and have always been given 6 lieu days per year (in addition to annual leave) as recognition that we could be called out at anytime for emergencies at work. We are not on call and can refuse if not convenient but have always had the lieu days. We have just been informed that they are taking away these lieu days and instead will pay us a sum of money if we attend a call out. Can my employer legally just take these days away from us?
KM - 27-Feb-17 @ 11:22 AM
My public service contract is 19.5hrs per week. However, due to a lack of salary budget, my employers in practice have increased my workload to 28+ hours per week without any pay or toil renumeration at all for the difference. ie staff are expected to complete all work set regardless of whether the workload exceeds their contacted hours. Please can you confirm if this is breach of contract? There is nothing in my employment contact about working more than 19.5hrs per week.
Suki - 15-Feb-17 @ 10:29 AM
I work 3 days a week 3 hours a day for a total 9 hours a week. Toil is given at 1.5 hours for every hour overtime worked. The handbook says no more than 1 day toil can be taken per week which is 7 hours for full time staff working 5 days and 35 hours. How much toil should I be allowed to take per week as a part time worker? I think I should be able to take 3 hours is this right? Thank you
KIKI - 13-Feb-17 @ 8:20 AM
SloanKate - Your Question:
Hi I have been working on a contract where I have become a 'flexible' night worker. I cover if sickness or emergency leave. I am also a Lead operator (basically a manager when the supervisor is not in, which for me is all the time as my manager doesn't work past 5pm, but don't get a manager wage.) The company won't pay overtime which is fine by me but they are wanting to dictate when I take my lieu hours for example, if I have to stay back 1.5 hours to cover someone being late they say they want me to come in later that night. That is of no benefit to me as I have to keep to a routine otherwise it effects my sleep pattern. Do I have any rights regarding this? I ask because my supervisor is currently working on creating a policy and proceedure for Lieu hours for the company to follow.

Our Response:
Much depends upon the terms and conditions of your current contract and what it specifies regarding you taking hours in lieu. Plus, if you are unhappy with the arrangement the only option you have really is to discuss it directly with your employer before the new contract is drawn up.
WorkingRights - 1-Feb-17 @ 10:30 AM
Hi I have been working on a contract where I have become a 'flexible' night worker. I cover if sickness or emergency leave. I am also a Lead operator (basically a manager when the supervisor is not in, which for me is all the time as my manager doesn't work past 5pm, but don't get a manager wage.) The company won't pay overtime which is fine by me but they are wanting to dictate when I take my lieu hours for example, if I have to stay back 1.5 hours to cover someone being late they say they want me to come in later that night. That is of no benefit to me as I have to keep to a routine otherwise it effects my sleep pattern. Do I have any rights regarding this? I ask because my supervisor is currently working on creating a policy and proceedure for Lieu hours for the company to follow.
SloanKate - 31-Jan-17 @ 3:15 PM
Over the last 8 years I have been working weekends and banking the hours for TOIL. It is in my contract and agreed by both parties. Now my new employer from may last year is saying it is to stop and wants pay me for the hours, his reason being is he's said it's against the law for me to bank my hours because the money is in the companies account until the holiday is taken and they're not paying tax on it. Does this entitle them to stop my banked hours.
Mart - 29-Jan-17 @ 6:08 PM
i have accur two hours toil each week i work one day shift and 3 nights my employer has stated this toil can be added to my night shift break instead of 1 hour break i can take 1.5 i cant leave the ward for my breaks and can be disturbed on my break if needed for patient care .i stated this is not toil as i am still in the working environment
poppy - 24-Jan-17 @ 1:52 PM
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