Unpaid overtime and union recognition at a site-based QS consultancy
A 95-person quantity surveying consultancy employs 18 assistant quantity surveyors, most of whom work on site. For seven months they have worked 10 to 14 extra hours a week without overtime pay, on the understanding that this is professional commitment. Last month management cut the site allowance by 30% without consultation. Fourteen assistants have now signed a petition and joined a trade union; one was dismissed two days later for circulating unauthorised material. The firm has no union recognition agreement, no written overtime policy, and no record of hours beyond project timesheets. The assistants say they will strike during a key tender. The HR manager wants to hold a disciplinary hearing and enforce the contracts as written. The managing director is worried about client deadlines and reputation. The firm's lawyer has asked for a fact pack before advising.
1. Assess the firm's legal exposure and the evidence it should gather before responding to the union.
Read the worked answer
The firm should not discipline or litigate before establishing coverage and facts.
Legal exposure
- Overtime. If the assistants fall within the Shop and Office Employees Act, normal hours are 45 per week and overtime is payable at 1.5 times the normal rate. If they are covered by a wages board instead, the relevant board decision governs. Seven months of unpaid extra hours create a quantifiable arrears claim, even if staff accepted the arrangement informally.
- Allowance cut. A unilateral 30% cut may breach individual contracts or established practice and is likely to be an industrial dispute requiring consultation. The firm must check offer letters, allowance policy and past practice.
- Dismissal. Dismissing an employee for circulating a petition or joining a union risks a victimisation finding. A Labour Tribunal can order reinstatement or compensation; the procedure followed will matter as much as the reason given.
- Collective action. The firm has no recognition agreement, but that does not remove the right to bargain collectively or the risk of industrial action.
Evidence pack: contracts and variations, allowance policy, attendance and timesheets, payroll records, union correspondence, the dismissal letter and hearing notes, and any written overtime policy. The fact pack should establish legal coverage first, then quantify arrears.
2. Recommend a negotiation and retention plan that addresses the legal risk, the tender deadline and the assistants' grievance.
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Separate the legal position from the negotiation, but do not use one to delay the other.
- Immediate stabilisation. Suspend the disciplinary hearing and any strike-breaking response. Appoint a senior partner as negotiator with clear authority. Confirm in writing that no victimisation will occur while talks proceed.
- Quantify and acknowledge. Calculate overtime arrears and the allowance impact from records. Offer a without-prejudice payment plan for arrears, and either restore the allowance or negotiate a phased change with consultation.
- Address the dismissal. Review the evidence. If the dismissal was primarily for union or petition activity, reinstatement or a negotiated settlement is the lower-risk route. If there was separate misconduct, follow a fair procedure before any sanction.
- Build a bargaining framework. Agree a recognition and consultation protocol, a written overtime and time-off-in-lieu policy, and a joint working group on site allowances. This gives the union a channel short of strike action.
- Protect the tender and retain talent. Offer tender-critical teams a clear, time-bound retention arrangement and backfill plan. Train managers so that professional commitment is not used as an excuse for unpaid hours. The objective is a documented, lawful settlement before the tender deadline, not a victory over the union.