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Employment law latest
Dan Carder, Human Resources Content Consultant, Peninsula, shares details of some recent employment law cases which considered payment for overtime, reasonable adjustments and whistleblowing protections
A contractual clause can be implied when it’s contradictory to an already expressed term In the case of Brake Bros Ltd v Hudek, the Employment Appeal Tribunal (EAT) had to consider whether the Tribunal erred in their judgment that the contract implied the claimant was entitled to pay for all hours worked over their contracted amount. The claimant worked as a driver for the respondent. At the time of bringing the claim, the claimant remained in the employment of the appellant. Their contract of employment required them to work five shifts per week. The intended average shift length was nine hours. However, the contract required drivers to “work such hours for each working shift as are necessary for the proper performance of your work duties on each shift.” Following a review of some of the routes, the respondent issued a contract addendum to increase the salary for drivers. This increase represented an additional two hours per week, enabling the respondent to plan routes for 47 hours a week. Pay for overtime under the contract was only available where an additional half shift (a minimum of four and a half hours) or full shift was worked. No overtime was payable when it was simply the case that the allocated delivery route took longer than expected.
For a period, the claimant’s shifts averaged just over 10 hours. They brought a claim for unlawful deduction from wages, arguing that when they worked over their contracted weekly hours, they were entitled to pro rata payments based upon their annual salary for that time. “The claimant brought a claim for failure to make reasonable adjustments by failing to provide auxiliary aids” The Employment Tribunal (ET) upheld the claim. It referred to the contract clause that required the drivers to “work such hours for each working shift as are necessary for the proper performance of your work duties on each shift.” This, the ET found, meant that the drivers were to finish their allocated shift, regardless of the time it took them. For this to work, the ET found that the contract relied on a core principle that the driver’s average hours would balance out over a reasonable period, as some shifts would be longer and others shorter.
Where the hours didn’t balance out as expected, the ET held, it was necessary to imply into the contract the requirement for the drivers to be paid for any hours over their contracted 47 hours, separate to the overtime provisions. This was appealed by the respondent. It was held that the ET had erred in implying this term, by changing the flexibility built into the contract into an obligation to pay when none was intended. Doing so, the EAT found, was unnecessary for business efficacy and contrary to the express terms of the contract. It was therefore unjustified to imply a term that the claimant would be paid for hours worked in excess of intended normal working hours, other than when already provided for in the express terms of the contract (i.e. the overtime rules). The contract was clear, the EAT ruled. The claimant was entitled to basic salary for five shifts per week, which were variable in length. Overtime pay was only available if an additional full or half shift was worked. The Tribunal’s judgment was therefore set aside, and the claim was dismissed. Employer’s failure to take necessary steps to provide adjustments was discriminatory In the case of McGuinness v Mersey Care National Healthcare Service Foundation Trust, the ET had to consider whether
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June 2025 | Issue 111
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