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Facts
The Claimant was a lorry driver. He was paid a salary and required to work five shifts a week. Each shift was expected to average 9.4 hours, subject to the requirement for the Claimant to work such hours on each shift as were necessary for the proper performance of his duties. The contract contained specific provisions relating to overtime, which only kicked in if the Claimant worked an extra half shift (at least 4.5 hours) or full shift. If a usual shift took longer than expected, but less than an extra half shift, no payment was made. For a period between 2021 – 2022, the Claimant’s average shift was 10 hours and 7 minutes. He brought an unlawful deduction from wages claim on the basis that he should have been paid for any time worked beyond his normal shift length, even if that was less than half a shift.
Employment Tribunal decision
The Employment Tribunal upheld the Claimant’s unlawful deductions from wages claim. It found that the relevant contractual clause provided flexibility given that drivers were expected to complete the allocated deliveries during each shift regardless of how long they took. However, it found that there was an agreement that on occasions where the Claimant worked more than his expected shift hours, they would be “balanced out” by other shifts when he worked less. The Tribunal found it was implicit that if the Respondent failed to ensure the Claimant’s work hours averaged out over a reasonable period, the Respondent would pay the Claimant for the additional hours worked. The Respondent appealed.
Employment Appeal Tribunal (EAT) decision
The EAT upheld the appeal. It found that the Claimant’s employment contract entitled him to a basic salary for working five shifts per week of differing lengths. There was no need to imply a term into the contract that the Claimant would be paid for hours worked in excess of his intended normal working hours, other than when the express overtime provisions kicked in.
Takeaways for employers
This decision will be particularly relevant for industries where fluctuation in hours is common. It highlights the importance of express terms within employment contracts. We therefore strongly recommend that Employers take time to review the hours and overtime clauses in their contracts and consider whether any amendments to these or their working practices are needed in response to this interesting and perhaps surprising decision. Clear drafting will be the key to avoiding any overtime disputes.
To discuss any of the issues raised in this article, please contact Lynsey Blyth.
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