In this case, the EAT held that a tribunal had been wrong to rule that a lorry driver was entitled to pay for additional hours worked above the intended weekly average specified in his employment contract.
Facts
The claimant, Mr Hudek, was employed by Brake Bros Ltd (BB) as a lorry driver. He presented a tribunal claim for unpaid wages.
Mr Hudek's contract of employment required him to work 5 shifts per week. The intended average shift length was 9 hours (later varied to 9.4 hours, so 47 hours per week) but the contract also provided that he was required to work such hours on each shift as were necessary for the proper performance of his duties. Overtime was contractually payable to drivers only if an additional half shift or full shift was worked. The minimum length of a half shift was set at 4.5 hours.
When Mr Hudek worked an additional full or half shift, he was paid for that as overtime at an enhanced rate. On occasion, however, he would accept additional delivery rounds during one of his regular shifts to assist BB in handling unanticipated difficulties in completing its delivery schedule. On those occasions, BB would typically provide an additional ad hoc payment for the extra work. On one occasion, time off in lieu had been given. If Mr Hudek's allocated delivery rounds simply took longer than expected, no additional payment would be made to him. This latter point was the essence of the Mr Hudek's complaint. He argued that, as his average shift length over the entire period of his claim (February 2021 to December 2022) was 10 hours and 7 minutes, he had worked for more than his contracted weekly hours and was entitled to pro rata payments based upon his annual salary for the additional hours.
The employment tribunal upheld his claim. It found that the contract provided flexibility given that drivers were expected to complete the deliveries allocated to each shift, regardless of how long they took. In order for that to work, it found that a principle at the core of the parties' agreement was that occasions when drivers worked more than their expected shift hours would be "balanced out" by others when they worked less. However, the tribunal found that the contract was silent on what happened if the shifts didn't balance out and the driver kept working over the contracted hours. The tribunal concluded that a term must be implied into the contract that, if no such averaging out took place within a reasonable period, the employee would be paid for all additional hours worked above the intended average. It therefore award Mr Hudek £4,689.33 in respect of his unpaid wages.
BB appealed and the EAT upheld the appeal, holding that the tribunal had been wrong to imply such a term. Properly construed, the contract entitled Mr Hudek to his basic salary for working 5 shifts per week of variable length. In any event, there was no legal basis for implying a term that Mr Hudek would be paid for hours worked in excess of his intended normal working hours other than when the express overtime provisions applicable to drivers were engaged.
What does this mean for employers?
This case highlights the importance of having clear contractual terms, particularly for working hours, overtime and pay. This case only came about because the contract did not specify what should happen regarding pay when the employee worked hours in excess of the intended hours but less than was required for overtime payments. It is also important to keep contractual terms under review so that any changes to working practices are captured.
