express term, and in any case was neither necessary, obvious nor precise, and gave useful guidance on when to imply terms at paragraphs 54 and 55. This judgment will give succour to beleaguered football managers, with the EAT referring with approval to an aspect of a Premier League arbitration panel ruling in Keegan v Newcastle United .
PAYMENT FOR OVERTIME
27 July 2011 The issue in this case was whether an employee was entitled to be paid for ad hoc overtime under a contract of employment. Daniel Barnett’s Employment Law Bulletin reports: The Court of Appeal has handed down its decision in Driver v Air India Ltd holding that where a contractual payment is not specified the law implies a reasonable sum. The principal issue in this case was whether Mr Driver was entitled to be paid for ad hoc overtime by Air India under a contract of employment. The contract provided that the provisions regarding overtime payments were "set out in notices and circulars issued by Air India from time to time". No such notices or circulars were issued, but Mr Driver was paid for overtime in the past. Air India argued that in the absence of any notices or circulars there was no contractual right to payment for overtime. Air India could not explain the previous payments. Lord Justice Rix, giving judgment in favour of Mr Driver, found that where a contractual payment is not specified the law implies a reasonable sum. Further, although a contract is not to be construed by subsequent conduct, the previous payment of overtime was highly relevant. 27 July 2011 In this case the court was asked to decide a number of questions on when a compulsory retirement age is justified. Daniel Barnett’s Employment Law Bulletin reports: 'Confusing' is the word that comes to mind when reading today's ECJ decision in Fuchs v Land Hessen . If you want three words, 'verging on incomprehensible' work quite well. The ECJ was asked to decide a number of questions on when a compulsory retirement age is justified. It seems to hold (para 50) that a retirement age is potentially justified to encourage the promotion of a younger workforce. Even more controversially, it suggested it is legitimate to retire older workers to prevent possible disputes concerning employees' fitness to work beyond a certain age. The ECJ also seems to adopt a test of whether it is "reasonable" to adopt a retirement age (paras 60 and 83), rather than whether it is proportionate to do so. Reasonable and proportionate, whilst similar, are not quite the same thing. On the facts, the ECJ held that a German law requiring state prosecutors to retire at 65 (albeit subject to some exceptions) on a generous pension was justified. COMPULSORY RETIREMENT AGE
CIPP Policy News Journal
09/10/2012, Page 41 of 234
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