Answered by Sara Williams

I am not quite sure what is meant by “voluntary overtime” either in a European or UK sense. The Working Time Directive 1993, brought into force in the UK by the Working Time Regulations 1998 (slightly different name but same details for Northern Ireland) limits working time to 48 hours per week unless a signed opt-out is held by the employer in respect of the individual employee.

Clearly if someone has signed such an-opt out the number of overtime hours, voluntary or not, is irrelevant. Most employers insert into contracts clauses regarding overtime. If they state overtime is mandatory and guaranteed then overtime is working time. If overtime is mandatory but not guaranteed then it is working time. Even where there is a clause which states “…you will be required to work the hours necessary for the proper fulfilment of your duties…etc” such overtime is working time.

The one time where overtime might be said to be voluntary and not count towards the working time maxima would be where an individual decides to work beyond normal finishing time knowing that they will not be paid (or given time off in lieu) simply because it suits them so to do. Then that time may not count as overtime and therefore not as working time. Again a Tribunal would look at the reality of the situation to ensure an employer wasn’t illegally exploiting an employee’s goodwill.

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