Written by Christine Jamieson, Senior Paralegal in the Employment team at Lindsays
A court case in which a lorry driver’s claim for additional pay was defeated due to a contractual flexibility clause highlights the importance of clear drafting and the limits of implied terms in pay disputes, an employment lawyer says.
A recent ruling from the Employment Appeal Tribunal in Brake Bros Ltd v Hudek serves as a sharp reminder of the importance of clear contractual drafting and the limits of implied terms in employment disputes concerning pay.
The claimant was employed as a lorry driver at Brake Bros Ltd’s Reading depot from February 2019 until December 2021, remaining with the company thereafter in a different role. Under the terms of his contract, he was required to work five shifts per week, with each shift averaging nine hours inclusive of breaks.
The contract stated that his “normal weekly working hours are 45 (to include breaks / not including breaks) completed within any shifts 5 from 7”, and also included a clause requiring him to “work such hours for each working shift as are necessary for the proper performance of your work duties on each shift”. His gross basic salary was £27,591.
Brake Bros later reviewed delivery routes and found that a number of them regularly took longer than the average nine-hour shift. In response, the company introduced a 4.4% uplift in salary to account for an additional two hours of work per week. Overtime payments were only made for full or half shifts worked in addition to the standard rota, and not for extra hours worked within a scheduled shift.
The driver noticed that between 2021 and 2022, his shifts averaged over ten hours. He brought a claim for unlawful deduction from wages under sections 13 to 27 of the Employment Rights Act 1996, asserting an entitlement to pro rata pay for the additional hours worked, on the basis of his annual salary.
An Employment Tribunal initially upheld the claim. It found that while the contract did permit flexibility, there was an implied term that longer shifts would be balanced out by shorter ones, and that if this did not happen over a reasonable period, additional payment would be due. The tribunal concluded that Brake Bros should pay for hours worked beyond the contractual norm when such imbalances occurred.
On appeal, however, the Employment Appeal Tribunal disagreed. It found that the Tribunal had erred in implying a term that contradicted the express wording of the contract. The EAT concluded that there was no basis for implying a right to additional payment for longer shifts unless the separate overtime provisions – linked specifically to additional full or half shifts – were engaged. The contract clearly provided for variable shift lengths within the framework of five weekly shifts, and the flexibility built into the contract was a core feature of the agreed terms.
Christine Jamieson, Senior Paralegal in the Employment team at Lindsays, said: “This decision underscores the importance of carefully drafted contractual provisions, particularly where roles involve irregular or fluctuating working hours. It is a strong reminder that the courts will give primacy to the written terms of an agreement, especially where those terms are clear and unambiguous.”
While tribunals may consider implied terms based on conduct or custom and practice, such implications will not be made lightly – especially where they would conflict with express provisions.
Had Brake Bros established a consistent practice of paying for shift overruns, or had its contractual terms been less clearly defined, the Tribunal’s original decision may well have stood. Moreover, employers must remain alert to the implications of extended hours on pay compliance, particularly in relation to the National Minimum Wage, as working longer hours without additional pay can lead to inadvertent breaches.
Christine continued: “Ultimately, this case highlights that in employment disputes, particularly those concerning working time and pay, written agreements carry significant weight. Ensuring contracts reflect operational realities and clearly set out what constitutes paid work versus unpaid can help minimise disputes and maintain clarity for both parties.”
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Lindsays is a Scottish firm of experienced lawyers for people and businesses. We are owned and run in Scotland, covering the country from our offices in Edinburgh, Glasgow, Dundee, Perth and Crieff.