UK: Pay: Additional Hours
Authors: Stephen Miller, Corinna Harris, and Sophie Jackson
The EAT has ruled that an employee was not entitled to additional pay for hours worked in excess of his normal working hours.
Mr Hudek’s contract required him to work five shifts a week. The expectation that a shift would take nine hours (which was subsequently increased to 9.4 hours) was subject to a requirement “to work such hours for each working shift as are necessary for the proper performance of your work duties”. Overtime was paid for any extra full shift or half shift (at least 4.5 hours) worked but if a shift took longer than intended but less than an additional 4.5 hours, he did not receive any additional pay.
Between 2021 and 2022, Mr Hudek’s shifts averaged over ten hours. He brought an unlawful deduction from wages claim on the basis that he should be paid pro rata for the additional hours he worked. A tribunal decided that there was an implied term that he would be paid for all additional hours worked.
The EAT allowed the appeal, concluding that the contractual terms were clear. They entitled him to his basic salary for working five shifts per week of variable length – and that he would only be entitled to overtime payments if he worked an extra shift or a half shift.
Key Action Points for Human Resources and In-house Counsel
This case illustrates the importance of ensuring that your employment contracts clearly state when overtime is payable, and when it is not. It’s a useful reminder that courts and tribunals cannot use implied terms to replace or contradict express terms.
This decision is significant for industries where employees have variable working hours.
