In this Employment Appeal Tribunal case, a lorry driver’s contract required him to work five shifts per week of variable length. The expectation that a shift would take nine hours was subject to a requirement in his contract to work such hours for each working shift as were necessary for the proper performance of his work duties. Overtime was paid for any additional full shift or half shift of at least 4.5 hours worked. If a shift did not involve at least an additional 4.5 hours' work, no additional payment was made.
He brought an unlawful deduction from wages claim, arguing he should receive pro rata payments, based on his annual salary for the additional hours he had worked, even when they weren’t contractually defined as overtime shifts.
The Employment Appeal tribunal, overturning the employment tribunal’s judgment, found that the tribunal had been wrong to find read into the wording of the driver’s employment contract a mechanism for flexibility entitling him to additional pay for working additional hours below the amount that triggered the overtime provisions.
The Employment Appeal Tribunal ruled that neither business efficacy nor the unexpressed intention of the parties justified the implication of a term that provided pay for hours worked beyond intended normal working hours, other than when the overtime provisions were engaged.
This ruling is in accordance with the legal principle that implied terms cannot override the express provisions of a contract and is a reminder that employers should ensure clear wording in the employment contract. Additionally, for salaried employees (in contrast to the position for hourly paid staff), this case demonstrates that, within reason, a requirement for employee flexibility in working hours, including working additional hours on an infrequent basis to get a job done, does not automatically entitle employees to additional wages. Where overtime is payable for working additional hours, any paid overtime provisions should clearly state when and how overtime pay is payable.