Brake Bros Ltd v S Hudek

The Employment Appeal Tribunal considered an appeal from a tribunal decision that had implied a term into a driver’s contract that, if average hours did not "average out" within a reasonable period, the driver would be paid for hours worked above the intended average. The claimant brought a complaint under section 13 of the Employment Rights Act 1996 for unpaid wages, asserting entitlement to pro rata pay for hours worked beyond his contracted weekly hours. The contract comprised Specific Terms, Standard Terms and a depot Addendum and expressly provided for overtime only where an additional full or half shift was worked (a half shift being a minimum of 4½ hours).

The EAT held that the tribunal erred in implying the contested term. Proper construction of the contract entitled the claimant only to his basic salary for five shifts per week of variable length, with express overtime pay only where the contract’s overtime provisions applied. Further, neither business efficacy nor the unexpressed intention of the parties supported implying a term inconsistent with those express provisions. The tribunal’s award for unpaid wages was set aside and the claim dismissed.

Background and procedural posture. The claimant was employed as a lorry driver and presented an ET1 complaint under section 13 of the Employment Rights Act 1996 alleging unpaid wages for the period 2021–2022. The Employment Tribunal at Watford found that the contract operated as an averaging arrangement (45 stated hours, a planned 47 hours under an Addendum) and implied a term that where the employer failed to allow hours to average out the claimant should be paid for additional hours worked. The employer appealed to the Employment Appeal Tribunal.

Nature of the claim / relief sought. The claimant sought unpaid wages as "properly due" under his contract in respect of hours worked in excess of his intended normal working hours.

Issues framed by the court.

• How should the contract be construed as a whole, in particular the interaction between Specific Terms, the Standard Terms (clauses 12–21) and the Reading depot Addendum?
• Whether an implied term should be read into the contract that, if hours did not average out, the claimant would be paid for hours worked above his intended normal working hours (tests: business efficacy and obvious unexpressed intention).

Court’s reasoning. The EAT analysed the express terms and concluded that the contract provided for payment of an agreed basic annual salary for five shifts per week of variable length. Clause 13 required working such hours as necessary for proper performance of duties on each shift; clause 15 described the weekly hours as an "intended average". The overtime provisions were expressly limited to additional full or half shifts (with a half shift defined in the Addendum as a minimum of 4½ hours) and provided for specified enhanced payments. The tribunal’s approach elevated flexibility provisions into an enforceable averaging obligation and implied a compensatory pay term inconsistent with the express overtime regime. Applying the established tests for implication, the EAT found no necessity to imply the term for business efficacy and no unexpressed intention at the time of contracting that would justify the implication. The tribunal’s implication therefore involved an impermissible addition to the parties’ bargain.

Subsidiary findings and context. The EAT noted comparative contractual drafting within the same Standard Terms (warehouse staff had fixed shift lengths and overtime for hours beyond weekly normal hours) and treated those deliberate differences as evidence against implying the term for drivers. The EAT referred to authorities on implication of terms and previous decisions reaching a similar conclusion on flexi-time and annualisation arrangements.

Appeal allowed. The Employment Appeal Tribunal set aside the Employment Tribunal’s judgment that had implied a term requiring payment for hours where averaging did not occur, ruling that the contract, properly construed, entitled the claimant only to his basic salary for five shifts per week of variable length and that neither business efficacy nor the unexpressed intention of the parties justified implying the contested term; the claim was therefore dismissed.

Employment Tribunal (Watford) judgment dated 22 January 2024 (no neutral citation provided) was appealed to the Employment Appeal Tribunal, resulting in this judgment [2025] EAT 53.