Can I Claim for Lost Overtime in a Personal Injury Claim?

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If you have suffered an injury in an accident that was not your fault, you may already understand that you can claim compensation for the loss of earnings caused by your injury.

But what many people do not realise is that your loss of earnings may not be limited to your basic salary or contracted wages.

If you regularly worked overtime before your accident, you may also be able to claim for the overtime earnings you have lost.

This is a question we are regularly asked as personal injury solicitors. People often tell us that they have been unable to work overtime following an accident but assume that they cannot claim for the lost income because overtime was voluntary, additional to their contracted hours, or not guaranteed by their employer.

That assumption can be wrong.

The fact that overtime is not guaranteed does not automatically mean that the income you would have earned from it should be excluded from your claim.

The important question is whether the evidence demonstrates that you would probably have worked the overtime and earned that additional income if you had not been injured.

In this article, we explain how lost overtime can form part of a personal injury claim, what evidence can be used to support your claim, why the previous 13 weeks or three months may be relevant, and what happens where a longer period or alternative approach is needed to accurately reflect your usual earnings.

Can I claim for overtime after an accident?

Yes, potentially.

There is no general rule that prevents overtime from being included when calculating your loss of earnings following a personal injury.

If you have suffered an injury and, as a result, have been unable to work the overtime you would normally have worked, the income you have lost may form part of your financial losses.

For example, imagine you are employed on a basic salary of £35,000 a year.

Your contracted hours provide your basic income, but you regularly work additional shifts and earn another £5,000 to £8,000 a year through overtime.

If an accident leaves you unable to work for several months, simply looking at your basic salary may not provide a complete picture of your actual financial loss.

If there is evidence that you would probably have continued working overtime, the lost overtime can potentially be taken into account.

This is why it is important to tell your solicitor about all of the income you normally receive, rather than simply providing details of your basic salary.

Why do people think they cannot claim for overtime?

One of the most common misconceptions we encounter is:

“My overtime wasn’t guaranteed, so I can’t claim it.”

That is not necessarily correct.

There is a difference between overtime being contractually guaranteed and overtime being a regular part of your actual earnings.

Your employment contract may say that:

• Overtime is voluntary.
• Your employer does not guarantee overtime.
• Overtime is offered according to business requirements.
• You can choose whether to accept additional shifts.
• There is no fixed number of overtime hours.

Despite this, you may have worked overtime consistently for months or years.

Your payslips could show that your overtime was a regular source of income.

In those circumstances, the fact that your employer was not contractually obliged to offer you overtime does not necessarily mean that the income can be ignored when considering your personal injury claim.

The issue is whether the evidence supports the conclusion that you would probably have earned the overtime if the accident had not occurred.

What does loss of overtime mean?

Loss of overtime is essentially a financial loss arising because your injury has prevented you from working additional hours that you would otherwise have worked.

For example, you might normally work:

• 40 contracted hours per week.
• An additional 8 hours of overtime.
• £600 per week in basic earnings.
• An average of £150 per week in overtime.

Your normal weekly income could therefore be around £750.

If your accident prevents you from working at all for 12 weeks, your loss is not necessarily limited to your basic wages.

If the evidence shows that you would probably have continued working the overtime, the additional £150 per week could also need to be considered.

That could make a significant difference to the value of your claim.

How is lost overtime calculated?

There is no single calculation that applies to every personal injury claim.

Your solicitor will need to consider your particular employment circumstances and the available evidence.

One potential approach is to look at your earnings before the accident and calculate an average level of overtime.

For example, if you regularly earned overtime during the weeks immediately before your injury, those earnings may provide evidence of what you would probably have continued to earn.

The calculation could involve looking at:

• Your basic wages.
• Your overtime payments.
• The number of overtime hours worked.
• Your overtime rate.
• The frequency with which you worked overtime.
• Your earnings over an appropriate period.
• Any seasonal variations.
• Any changes to your employment.
• Overtime that had already been offered or agreed.
• Overtime available to employees in your role.

The calculation should aim to produce a fair assessment of the income you would probably have received had you remained able to work.

Why are the previous 13 weeks or three months important?

When assessing overtime, your solicitor may look at your earnings during the 13 weeks or three months before your accident.

This can be a useful starting point because it provides relatively recent evidence of your working pattern immediately before your injury.

Suppose you worked overtime during 11 of the 13 weeks before your accident.

Your payslips show that you earned:

• £125 overtime in week one.
• £175 in week two.
• £150 in week three.
• £200 in week four.
• £135 in week five.
• £180 in week six.
• £160 in week seven.
• £145 in week eight.
• £190 in week nine.
• £155 in week ten.
• £175 in week eleven.
• £165 in week twelve.
• £150 in week thirteen.

This provides evidence of a reasonably consistent pattern of overtime.

An average can potentially be calculated and used as evidence of the overtime you would probably have earned during the period when your injury prevented you from working.

However, it is important to understand that 13 weeks is not a universal legal rule for every personal injury claim.

It is one possible way of assessing the evidence.

The appropriate approach will depend on your individual circumstances.

What if three months doesn’t reflect my usual overtime?

This is an important consideration.

A three-month period may not always provide an accurate picture of someone’s normal earnings.

For example, you may work considerably more overtime at certain times of the year.

Perhaps you work in an industry where overtime increases during the summer, around Christmas or during particularly busy periods.

Alternatively, you may have only recently started working significant amounts of overtime.

Perhaps you had recently changed roles, received a promotion or moved to a different shift pattern.

You might also have been offered a substantial amount of additional work shortly before your accident.

In these circumstances, simply looking at the previous 13 weeks may not produce a fair representation of your likely earnings.

A solicitor may therefore consider a longer period of earnings or another appropriate method of calculation.

Looking at six or twelve months of earnings

Where overtime fluctuates, it can sometimes be useful to examine your earnings over a longer period.

For example, looking at six or twelve months of payslips may provide a much clearer picture of your normal working pattern than looking at only three months.

This can be particularly relevant where:

• Overtime is seasonal.
• Your hours fluctuate.
• You work different shifts.
• You work additional hours during busy periods.
• Your industry has periods of particularly high demand.
• You have worked overtime consistently over a number of years.

A longer period can help identify whether the overtime shown in your payslips was genuinely representative of your earnings or simply an unusually high or low period.

What if I had only recently started doing overtime?

You may still be able to claim for lost overtime.

Imagine that you have worked for your employer for several years but only started regularly accepting overtime three months before your accident.

Your previous year’s payslips would not necessarily show the new pattern.

In this situation, your solicitor may consider other evidence.

For example, perhaps:

• Your employer had introduced a new overtime requirement.
• Your department had become busier.
• You had been regularly offered additional shifts.
• You had agreed to work overtime in the weeks following your accident.
• Your manager can confirm that overtime was regularly available.
• Your recent payslips show a clear change in your earnings.

The important point is that the evidence needs to reflect your likely earnings at the time of the accident and going forward, rather than automatically relying on an arbitrary historical period.

What evidence do I need to claim lost overtime?

Evidence is extremely important when establishing a claim for lost overtime.

As personal injury solicitors, we will usually want to understand exactly what your earnings looked like before the accident.

Useful documents may include:

Payslips

Your payslips are often one of the most useful forms of evidence.

They can show:

• Your basic salary.
• Your overtime payments.
• The number of hours worked.
• Different rates of pay.
• Other regular payments.

A series of payslips can help demonstrate whether overtime was a regular feature of your income.

Bank statements

Bank statements can help demonstrate what you were actually receiving.

They can also help corroborate the figures shown on your payslips.

Timesheets

If your employer records the additional hours you work, timesheets can be particularly useful in establishing the frequency and amount of your overtime.

Rotas and shift records

Your work rota may show that you regularly worked additional shifts or that particular overtime shifts were available to you.

Employment contract

Your employment contract can help establish your contracted hours, rate of pay and the terms governing overtime.

However, remember that the fact that overtime is not guaranteed does not automatically mean that it cannot be considered.

Employer evidence

Information from your employer or manager may help establish how frequently overtime was available and whether you regularly accepted it.

Previous earnings

If your overtime has been consistent over a number of years, previous P60s and earnings records can help establish a longstanding pattern.

What if my overtime was voluntary?

This is another common concern.

Many employees choose whether to accept overtime.

You may therefore wonder:

“If I could have said no to the overtime, how can I claim that I would have worked it?”

The answer will depend on the evidence.

If you consistently accepted overtime before your accident, your earnings history may help demonstrate that it was a regular and important part of your income.

For example, if you accepted overtime almost every week for the previous year, there may be a reasonable evidential basis for arguing that you would have continued doing so.

On the other hand, if you rarely worked overtime and there is little evidence that you would have done so during the period of your absence, it may be more difficult to establish the loss.

Every case therefore needs to be assessed individually.

What if my employer says overtime wasn’t guaranteed?

Your employer does not necessarily have to confirm that you were guaranteed overtime for a claim for lost overtime to be considered.

What matters is the overall evidence.

For example, your employer may say that overtime was optional but confirm that:

• Overtime was regularly available.
• You frequently accepted overtime.
• You had worked additional shifts for a significant period.
• Other employees in your role continued to work overtime.
• There was an ongoing need for additional hours.

That evidence could be relevant when establishing what you would probably have earned.

Your solicitor will consider the evidence as a whole rather than looking solely at one clause in your employment contract.

Can I claim overtime if I was paid sick pay?

Potentially, yes.

Receiving sick pay does not necessarily mean that you have suffered no loss.

For example, you may continue to receive your basic contractual salary while absent but lose the additional income you would normally have earned through overtime.

Imagine you normally receive:

£600 basic wages + £150 average overtime = £750 per week.

If you receive £600 per week while off work, you may still have lost the £150 you would probably have earned through overtime.

The calculation will need to take account of all payments you received during your absence so that your actual financial loss is accurately assessed.

Can I claim lost overtime if I returned to work?

Yes, potentially.

You do not have to be completely unable to work for a loss of overtime to arise.

This is particularly important for people who have suffered injuries that allow them to return to their normal role but prevent them from working additional hours.

For example, before your accident you might have worked:

37.5 contracted hours + 10 hours overtime every week.

Following your injury, you return to your contracted hours but cannot physically manage the additional overtime.

Your basic salary may therefore be unchanged, but your actual weekly income could be significantly lower.

If the injury is responsible for your inability to work overtime, the resulting loss may form part of your claim.

What if my overtime is different every week?

Variable overtime does not automatically prevent you from claiming.

Many employees do not work exactly the same amount of overtime each week.

One week you may work two additional shifts, while the following week you may work none.

The important issue is whether your earnings history provides a reasonable basis for estimating what you would probably have earned.

An average over an appropriate period may be used where appropriate.

Your solicitor will consider the pattern rather than simply looking for an identical amount of overtime every week.

What if I was expecting more overtime in the future?

This may also be relevant.

Perhaps your employer had recently secured a large contract, introduced additional shifts or announced increased overtime opportunities.

You may have already agreed to work additional hours when your accident occurred.

If there is evidence of this, it could be relevant to assessing what you would probably have earned.

For example, an email from your employer confirming additional shifts, a work rota or a written agreement to work overtime may help establish that the additional income was more than merely speculative.

Can I claim for future lost overtime?

Potentially.

Lost overtime does not necessarily end when you return to work.

If your injury has permanently or significantly reduced your ability to work additional hours, this could affect your future earning capacity.

For example, you may have previously worked substantial overtime but now be unable to do so because of ongoing symptoms.

You might return to your contracted role but permanently lose the ability to earn the additional income you previously relied upon.

In appropriate cases, this may give rise to a claim for future loss of earnings or loss of earning capacity.

Future losses can be more complicated to calculate because they involve considering what you would probably have earned in the future and the effect of your injury on your working life.

For serious injuries, specialist medical, employment or financial evidence may sometimes be required.

What about bonuses, shift allowances and other payments?

Overtime is not the only additional income that may need to be considered.

Depending on your circumstances, your financial losses could potentially include other payments that you would probably have received had you not been injured.

These might include:

• Shift allowances.
• Regular bonuses.
• Commission.
• Additional contractual payments.
• Weekend or night-work payments.
• Other regular earnings associated with your role.

Whether a particular payment can be included will depend on its nature and the evidence supporting the loss.

This is another reason why it is important to provide your solicitor with your full earnings information rather than simply stating your basic annual salary.

Can lost overtime make a significant difference to my claim?

It certainly can.

Consider someone earning £600 a week in basic wages who normally earns another £150 through overtime.

If an injury prevents them from working for 20 weeks, their lost overtime alone could represent around £3,000 before the appropriate adjustments are made.

For someone with higher overtime earnings or a longer period away from work, the figure could be considerably greater.

If the injury permanently prevents someone from undertaking overtime, the potential financial impact may be even more significant.

This is why we encourage anyone making a personal injury claim to think carefully about their actual earnings, rather than simply their contractual salary.

What if I have already made a personal injury claim?

If you have already started a personal injury claim and have not mentioned your overtime, tell your solicitor as soon as possible.

It is important that all relevant financial losses are identified and supported by evidence.

You should provide any available:

• Payslips.
• P60s.
• Bank statements.
• Overtime records.
• Timesheets.
• Rotas.
• Employment information.
• Evidence of additional shifts.
• Details of overtime you expected to work.

Your solicitor can then consider whether the lost overtime should be included in the calculation of your claim.

Don’t assume overtime doesn’t count

If you take only one thing away from this article, it should be this:

Do not assume that you cannot claim for lost overtime simply because overtime was not guaranteed or formed part of your contracted hours.

If you regularly worked overtime before your accident, that income may be an important part of your financial losses.

A 13-week or three-month period may provide a useful starting point for establishing a pattern of overtime, but it is not a universal rule. Where three months does not accurately reflect your normal earnings, your solicitor can consider whether a longer period or another appropriate method provides a more reliable calculation.

Ultimately, the question is what you would probably have earned if your injury had not happened.

How can a personal injury solicitor help with a lost overtime claim?

Loss of earnings calculations can become more complicated when overtime is involved.

Simply taking your basic salary and multiplying it by the number of weeks you were absent may not accurately reflect your true financial loss.

As personal injury solicitors, we can look at the wider evidence, including your previous payslips, overtime pattern, working hours, employment arrangements and the circumstances surrounding your absence from work.

We can also consider whether your injury has affected your ability to work overtime after returning to your job and whether there may be an ongoing or future loss.

If you have been injured in an accident at work, road traffic accident, public liability accident or another accident caused by someone else’s negligence, make sure you tell your solicitor if overtime was a regular part of your income.

Get In Touch

If you are considering making a personal injury claim and have lost income because you have been unable to work, don’t overlook your overtime.

Whether you worked occasional additional shifts or regularly relied on overtime to supplement your basic salary, it is worth discussing this with a solicitor.

You may be able to claim for the overtime you would probably have earned as part of your loss of earnings.

Contact our experienced personal injury solicitors today on 0800 195 6412 to discuss your circumstances and find out whether you may be able to recover compensation for your lost overtime and other financial losses.