| The recent case of Brake Bros Ltd v Mr S Hudek, heard at the Employment Appeal Tribunal, provides a good overview of the topic of express and implied terms in an employment contract.
An express term is one that is clearly stated (normally in writing but it could also be verbal). An implied term can be read into a contract, but only when it is necessary to do so to make sense of a particular set of circumstances that are not otherwise covered by the express terms.
In this case, the claimant was a lorry driver whose contract of employment contained a number of clauses concerning working hours and pay. His contract stipulated that he would work 5 shifts per week with the normal expectation being that each shift would be 9.4 hours long. He was paid a salary rather than an hourly rate, and his contract also stated that he would be required to work such hours as were necessary for the proper performance of his duties on each shift. There were separate provisions for overtime, which stated he would become eligible for overtime at an enhanced rate only for any additional half or full shifts taken on in any week (i.e. on top of the standard 5 shifts).
He brought a claim for unlawful deduction from wages whilst still employed (albeit in a different role as Training Support Driver), as he had consistently worked on average more than 9.4 hours per shift over a period of a year or longer. He argued that he should have been paid overtime for what he considered the additional hours worked.
The Employment Tribunal agreed with him and found in his favour, stating that there should be a term implied into his contract on that basis. The Employment Appeal Tribunal overturned this decision, saying the Employment Tribunal had erred in law by wrongly attributing the implied term when this was not necessary or correct. It stated that the contract made it clear that he would be required to work flexibly and not be constrained to the expected 9.4 hours per shift. It was also made clear in the contract precisely when overtime would be paid, and that did not apply in the case of a shift running over 9.4 hours, or weekly hours exceeding 47 – it only applied when he took on extra shifts.
We tend to use careful wording in the contracts we draw up for clients that cover additional hours for salaried staff. Normally we state clearly that they are required to work such hours as are necessary to properly perform the duties and that no additional pay would be made for such hours as this is included in the salary (or to include wording covering when additional pay or time off in lieu may be granted).
Please remember to contact us if and when you are considering changing terms and conditions of employment. It is going to become a lot harder to change contracts for current staff once the provision of the Employment Rights Bill take effect (which could be as soon as the Autumn), because the approach of “fire and re-hire” is going be outlawed other than in very exceptional and limited circumstances. (See our update from December 2024). |
