Employers often neglect the importance and value of employment contracts and policies. If you do not keep your employment contract and policies up to date, you can face serious repercussions in the Employment Tribunal. This situation can simply be prevented by good HR practices, namely, by updating contracts and policies.
A recent case in the Employment Appeal Tribunal, Brake Brothers Ltd v Hudek, serves as a reminder to employers to get their employment documents updated by a professional HR service like Quest.
The Employment Appeal Tribunal ruled that the Employment Tribunal was incorrect in deciding that a lorry driver was entitled to pay for extra hours worked above the contracted hours in his contract of employment.
The employee was a lorry driver who made the claim against his employer, Brake Bros Ltd, based on unpaid wages. He was contracted to work 5 shifts per week. Each shift was an average of 9 hours. The contract was later varied so he worked an average of 9.4 hours - 47 hours per week in total. The contract also said that he was obliged to work such hours on each shift as were needed for the proper performance of his duties. The contract specified overtime was paid only if an additional half shift or full shift was worked. A half shift was set at 4.5 hours.
The employee was paid an enhanced overtime rate when he worked an additional full or half shift. He would also at times undertake additional delivery rounds during one of his regular shifts to help out his employer in handling unexpected problems in completing its deliveries. When this occurred, the employer paid an additional payment for this work. The employer, on one occasion, gave the employee time off in lieu. If the employee’s usual round took longer, no further payment was given to the employee. This was the basis of the employee’s complaint to the Employment Tribunal. He argued he worked more than his contracted hours on average and so he was entitled to his extra wages.
The Employment Tribunal upheld the employee’s claim. It ruled that the contract was flexible. The drivers were expected to complete the deliveries given to each shift, regardless of how long they took. It found the main principle of the contract was that on occasions when drivers worked more than their required shift, hours would be offset by other occasions when they worked fewer hours. The Employment Tribunal said the contract remained silent about the situation when the employees’ shifts did not offset, and the employee worked over the agreed contractual hours. It therefore implied a term into the contract that where the contract did not balance out, additional wages must be paid for the extra work. The employee was made an award of £4,689.33 for unpaid wages.
The employer appealed to the Employment Appeal Tribunal. They argued that it was wrong to imply such a clause. The appeal was upheld on this basis. The Employment Appeal Tribunal ruled the correct interpretation was that the contract paid the employee his basic salary for his 5 shifts per week of variable length. The employer was not obliged to pay for hours worked in excess of his normal contractual hours other than when the express overtime provisions applicable to drivers were engaged.
The case shows that an employer must have clear contractual terms and conditions of employment. Good HR practice ensures contractual terms are under regular review so that any changes to working practices and legislation are updated. Quest can help you avoid unnecessary employment claims by updating your contracts of employment and HR policies.
If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852028.
