Brake Bros Ltd v S Hudek

A contract requiring a driver to work five shifts of variable length, with weekly hours described as intended averages, does not without more create an enforceable obligation to average hours over time or to pay for excess hours worked on ordinary shifts. The contractual entitlement is to the agreed salary, subject to any express overtime entitlement.

A term providing payment for excess hours cannot be implied merely because it appears fair. It must be necessary for business efficacy or reflect the parties’ obvious but unexpressed intention, and it cannot contradict detailed express provisions which restrict overtime to additional shifts.

The claimant, a lorry driver based at the appellant’s Reading depot, brought an unlawful-deductions complaint under section 13 of the Employment Rights Act 1996. He contended that he was entitled to pro rata pay for hours worked beyond 47 hours a week during ordinary shifts.

The Employment Tribunal at Watford held that the contract contained an averaging-out principle. It implied a term requiring payment at the basic rate where the employer did not reduce later shifts within a reasonable period. It awarded £4,689.33.

The employer appealed on the single ground that the Tribunal had erred in implying that term. The central issue was whether the express driver terms entitled the claimant to additional remuneration for extended ordinary shifts.

1. Appeal allowed. The Tribunal’s judgment was set aside and the claim was dismissed.

2. On its proper construction, the contract entitled the claimant to an agreed annual salary for working five shifts each week, although the shifts could be of variable length. Clause 13 required a driver to work the hours necessary to perform duties on each shift. The references to normal and average hours described intended averages and permitted weekly fluctuation; they did not impose an enforceable averaging-out obligation or create a contractual form of flexi-time.

3. The express overtime scheme was exhaustive for the relevant issue. Overtime arose only where the driver worked an additional full shift or half shift. An extended ordinary shift did not attract overtime or a separate basic-rate payment.

4. It was therefore unnecessary and impermissible to imply the term adopted by the Tribunal. The detailed terms were commercially coherent without it. Neither business efficacy nor the parties’ obvious but unexpressed intention supported payment for hours exceeding intended normal hours where the express overtime provisions in the Standard Terms and Addendum were not engaged.

5. The distinction between the driver terms and the fixed-hours, hourly-overtime terms for warehouse workers was deliberate. That distinction reinforced the conclusion that the parties had not omitted the proposed payment entitlement.

• Employment Appeal Tribunal: appeal allowed; the Employment Tribunal’s judgment was set aside and the claimant’s unlawful-deductions claim was dismissed.
• Employment Tribunal at Watford: Employment Judge Hunt, sitting alone, held on 22 January 2024 that a payment term should be implied and awarded £4,689.33.