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Time Off in Lieu When Working Additional Hours

By: Maggie Lonsdale BA (hons) - Updated: 26 Apr 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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[Add a Comment]
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
My employer wants to give me advanced toil tonight so I can cover someones holiday in Feb or March is this aloud,as it means I lose pay this month.
Tre - 20-Jan-17 @ 10:12 AM
Hi ...I have just spoken to my manager about days in lieu for working Bank Holidays...she says we don't get a day in lieu as we have 20 days holiday a year plus 8 Bank Holidays..I worked on Boxing Day last year and also Tuesday the 27th December so I thought I would get 2 extra days to take when I needed them, she says no.....my contract states that if you work on a Bank Holiday you get paid at the normal rate but will accrued one day in lieu.....does this mean an extra day for me ?
Lindylou - 16-Jan-17 @ 3:14 PM
My employer has always paid extra hours worked, (outside the 40 hour contracted hours) however after my pay was short i questioned it with rhem, to be told they are not paying for any extra hours even though it was permitted by themselves. Instead i have to take toil which i dont want, can they do this without any prior notice or diacussions??
Ruby - 11-Jan-17 @ 6:46 PM
Lols - Your Question:
I travel abroad on business a lot. My company is very fair about expenses and I don't abuse them.However I often fly on a weekend, and almost always visit customers on a Saturday when I'm abroad. I also attend trade shows on both Saturdays and Sundays.My contract says I have a 40hour working week Mon-Fri 9am -6pm although we may occasionally have to work outside of these times. It also states that work outside of these hours at the weekend is considered overtime and is paid at our contracted pro rata salary rate. Because I'm often away I am not required to clock in/out so my work hours aren't actually recorded. I've so far made a few trips, have travelled 3 times at the weekend and I've actually worked three Saturdays and one Sunday. The work days are documented in my end-of-trip reports. I haven't however received any recompense. How do I approach my employer and what are my rights please?

Our Response:
Do you know whether the other employees in your company receive overtime for weekend working? It may be worth finding out from them first. Otherwise, you will have to take the terms of your contract to your employer informally to discuss the matter.
WorkingRights - 11-Jan-17 @ 12:07 PM
I travel abroad on business a lot. My company is very fair about expenses and I don't abuse them. However I often fly on a weekend, and almost always visit customers on a Saturday when I'm abroad. I also attend trade shows on both Saturdays and Sundays. My contract says I have a 40hour workingweek Mon-Fri 9am -6pm although we may occasionally have to work outside of these times. It also states that work outside of these hours at the weekend is considered overtime and is paid at our contracted pro rata salary rate. Because I'm often away I am not required to clock in/out so my work hours aren't actually recorded.I've so far made a few trips, have travelled 3 times at the weekend and I've actually worked three Saturdays and one Sunday. The work days are documented in my end-of-trip reports. I haven't however received any recompense. How do I approach my employer and what are my rights please?
Lols - 10-Jan-17 @ 12:54 PM
My employer has previously paid overtime but today we have been told any extra hours we work for the next 2 months will be treated as TOIL..surely they can not just decide to do this .. There is nothing in contract that refers to overtime payments or TOIL... We are contracted to 44hrs per week with variance to work 48hrs.... I often have to work in excess of this...
Winter22 - 9-Jan-17 @ 4:46 PM
Lisa - Your Question:
I have 19 days holidays to take this year (I've only taken bank holidays and 1 other day off this year). although I wasn't 'forced' to not take holidays, there was no coverage available for me to take days during the year. Do I have any entitlement to get paid for these days or carry them over into next year? Thanks,AJ

Our Response:
The information about carrying holidays forward should be contained in your contract. If not, you would have to speak to your employer about this issue directly.
WorkingRights - 19-Dec-16 @ 2:23 PM
I have 19 days holidays to take this year (I've only taken bank holidays and 1 other day off this year). although I wasn't 'forced' to not take holidays, there was no coverage available for me to take days during the year. Do I have any entitlement to get paid for these days or carry them over into next year? Thanks, AJ
Lisa - 18-Dec-16 @ 4:03 PM
Today I called in sick to my manager, he told me that was fine to have the day off, however my TOIL would be used for having this sick day off. Is he right to do this?
Tom - 15-Dec-16 @ 10:21 AM
Special K - Your Question:
I have about 20 hours holiday to take but can't fit them in the time left to take them (end of the year) which is not a problem to me.However, I was told yesterday afternoon that I wasn't needed to work my 8 hours today. I feel that I should be able to use those 8 hours as holiday so that I don't owe my employer them but they say that they can't be taken as holiday as they needed to be booked sooner. Surely if they owe me 20 hours they should deduct the 8 from this? Am I correct?

Our Response:
You should discuss this with your employer directly (usually there would be room for negotiation if you have holiday due). If your employer will not allow this, you may do as well to ensure your holidays will not be lost if you cannot take them before the end of the year.
WorkingRights - 7-Dec-16 @ 3:01 PM
I have about 20 hours holiday to take but can't fit them in the time left to take them (end of the year) which is not a problem to me. However, I was told yesterday afternoon that I wasn't needed to work my 8 hours today.I feel that I should be able to use those 8 hours as holiday so that I don't owe my employer them but they say that they can't be taken as holiday as they needed to be booked sooner.Surely if they owe me 20 hours they should deduct the 8 from this?Am I correct?
Special K - 3-Dec-16 @ 4:56 PM
Jonesy - Your Question:
Employer given out 10 hour contracts instead of our old 30 hours contracts to save on holidays, even tho we work 40 hours a week. So our holiday entitlement is now based on a 10 hour week which is 56 hours a year, when in fact should be getting 224 hours.

Our Response:
If you are already on a 30 hour per week contract, you do not have to agree to the changes. Much will depend upon how long you have been employed by your employer and what your contract says. You may wish to speak to ACAS regarding this, as you will get a more definitive answer to the problem. Please see link here.
WorkingRights - 15-Nov-16 @ 10:22 AM
Employer given out 10 hour contracts instead of our old 30 hours contracts to save on holidays, even tho we work 40 hours a week. So our holiday entitlement is now based on a 10 hour week which is 56 hours a year, when in fact should be getting 224 hours.
Jonesy - 14-Nov-16 @ 1:15 AM
Can you be made to give up your payed over time and have to take toil?!
Bill16 - 11-Nov-16 @ 2:44 PM
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