With increasing financial pressure on employers to manage costs, some are exploring whether they can limit or ban overtime. Particularly where an employee has recently returned from sickness absence. While this may appear to be a simple cost-saving or wellbeing measure, the legal position is nuanced and requires careful consideration.
Is there a legal right to overtime?
In short, no. There is no automatic legal right to overtime, and it is often offered at the discretion of the employer.
It is important to review the employees’ contracts of employment and/or written statements of particulars to determine if there is a contractual right to:
• A guarantee of overtime; or
• A minimum or regular allocation of overtime hours.
Where this wording is in place, the employer cannot unilaterally withdraw overtime without consulting the affected employees and obtaining their consent to the contractual change. Doing so may constitute a breach of contract.
Can employers ban overtime after sickness absence?
Yes, in principle, employers can impose a temporary overtime ban following a period of sickness absence. This is not an uncommon money-saving approach and is typically set out in a separate formal policy or an established management practice.
This is often framed as the employer fulfilling their duty of care, with the restriction intended to support a safe return to work as it prevents the employee from overexerting themselves before they are fully recovered. This, in turn, reduces the risk of relapse and consequently the need for further sickness absence.
Are there risks to imposing an overtime ban?
Whilst this practice is common, it does carry a degree of risk.
Employers should take care not to single out individual employees when applying an overtime ban, as this could amount to unlawful discrimination if it is considered to target or disproportionately affect employees with a particular protected characteristic, such as disabled or pregnant employees. For example, where the overtime restriction is linked to sickness absence that itself is connected to a disability.
A blanket ban would arguably be the fairer approach, as it is applied consistently across the workforce and avoids singling out or targeting individual employees. That being said, it does not come without risk. Employers should consider whether an overtime ban policy would disproportionately impact certain groups of employees with a protected characteristic. For example:
– Women, who may be more likely to work part-time given that childcare responsibilities more often than not fall upon their shoulders and may well rely on overtime to supplement their earnings or maintain flexibility;
– Disabled employees, who (as a result of their condition) have higher levels of sickness absence than those without their condition; and
– Pregnant employees, who may need to take sickness absence due to pregnancy-related symptoms or conditions.
Though blanket ban appears neutral on the face of it, it could amount to indirect discrimination if it were to disproportionately affect a protected group.
There is, however, a potential defense where the employer can show that the ban was a ‘proportionate means of achieving a legitimate aim’. In practice, this means that Employers can demonstrate:
1. The aim itself was legitimate;
2. It was in fact pursuing that legitimate aim;
3. The ban was appropriate and rationally connected to that aim; and
4. There were no less discriminatory alternatives available to achieve the same objective.
Common legitimate aims in this context include:
• Protecting the health and safety of their workforce;
• Complying with the employer’s duty of care; and
• Ensuring operational effectiveness and safe staffing levels.
Practical Checklist
Before implementing an overtime ban, employers should:
✅ Review contracts for any overtime provisions
✅ Check policies and ensure they are applied fairly and consistently
✅ Assess the reason for sickness absence (e.g. disability, pregnancy-related)
✅ Consider individual circumstances, rather than applying blanket rules without thought
✅ Ensure those responsible for applying the policy (i.e. management) will be appropriately trained
✅ Keep a paper trail as to the reasoning for imposing the ban
✅ Consider reasonable adjustments where disability is involved
✅ Where there is any uncertainty, seek legal advice
So, in answer to the question, an employer may be able to impose a ban on overtime following sickness absence, but this is rarely a risk-free decision. The key considerations are:
– Contractual entitlement to overtime
– Fair and consistent application of the ban
– Discrimination risks
– Whether the ban can be objectively justified
As ever in employment law, the answer is highly fact-specific and employers should proceed with caution.
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