Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Claimant, lorry driver, not entitled to pay for additional hours worked where the contract of employment stated that he would be required to work five shifts per week of variable length.
The claimant worked for the respondent as a lorry driver. The issue was that the claimant stated he had worked longer than his contracted hours and sought pro rata payments based upon the annual salary. The contract required the claimant to work 5 shifts per week and the intended average shift length was to be 9 hours. The contract, though, did state that the claimant was to work such hours on each shift as necessary to properly perform the duties. Overtime was only payable where there was an additional shift or half-shift (4.5 hours). The issue was whether the claimant was entitled to payment for the additional hours which did not meet the threshold for overtime.
At first instance the Tribunal held that the claimant’s contract did allow for averaging out of his working hours with an implied term that if no averaging took place within a reasonable period that claimant would be entitled to be paid for all additional hours worked above the intended average.
The respondent appealed to the EAT. The EAT held that the Tribunal had made their decision in error relating to the contract of employment. The contract, properly constructed, entitled the claimant to his base salary for working five shifts per week which could be of variable length. There were no grounds for an implied term as it was not required through business efficacy or the unexpressed intentions of the parties as the time of the contract. As a result, the claim was dismissed.
Yet again the contract of employment and ensuring clarity within that document has come to the fore. The issue here was the extent of the working hours required for the claimant. In this situation the construction of the contract was the guiding light for the EAT and the threshold was not met for an implied term to be inserted relating to the additional hours. Employers and employee should be aware of the contractual rights and responsibilities should these issues arise and to act accordingly.
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