EAT overturns Tribunal's decision on unpaid wages claim

Mr Hudek was a lorry driver for Brake Bros Limited. He received a salary and was required to work five shifts a week, each expected to average 9.4 hours. His contract provided that he was only entitled to overtime if he worked an extra half shift (at least 4.5 hours) or a full shift.  Some time between 2021 – 2022, the Claimant’s average shift was 10 hours 7 minutes. He brought a claim for unlawful deduction from wages on the basis that he should have been paid for time worked beyond his normal shift length, even if that was less than half a shift.

Decision of the Employment Tribunal

The Employment Tribunal upheld Mr Hudek’s claim. The contract was found to provide flexibility as drivers were expected to complete specific deliveries regardless of the time taken. The Tribunal also found that there was an “averaging out” by other shifts when the Claimant worked less hours. The Tribunal therefore found that a fair term should be implied into the contract, namely that if the employer failed to balance out long shifts with shorter ones, the Claimant should be paid for additional hours worked. Brake Bros Ltd appealed.

Decision of the Employment Appeal Tribunal

The EAT found in favour of Brake Bros Ltd. The express terms of the contract were found to be sufficiently clear (i.e. the contract entitled the driver to a basic salary for working five shifts per week of differing lengths). The EAT found that there was therefore no legal basis upon which to imply a new term into the contract that the Claimant would be paid for hours worked in excess of his normal working hours (other than when the contractual overtime provisions kicked in).

Takeaways for Employers

Where there is flexibility in contracts, tribunals are unlikely to imply additional terms into contracts to fill in any gaps. The decision in this case highlights the importance of having unambiguous contract terms, particularly around hours, pay and overtime. In businesses where fluctuating working hours is common, clear drafting will be particularly important. Employers should therefore review any such clauses in their contracts and consider whether amendments are needed.

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