The claimant began working as a part-time sales associate for the respondent health shop.  After being promoted to supervisor, he became responsible for opening the store in the morning and closing the store at night if the store manager was absent.

He claimed that in carrying out these tasks he had accumulated over two hundred hours in overtime after his contracted shifts were due to finish, for which he was not paid.  The respondent contended that it was ‘custom and practice’ in the retail sector for managers not to be paid for time spent closing the shop and that the whole process takes only a few minutes.

It was not in dispute that the Respondent operated an overtime scheme where employees would be paid for additional hours worked, over and above their contractual hours.  The tribunal held that the claimant was employed under a fixed hours’ contract and so was “entitled to payment” for the extra hours.  It explained that in the absence of an express agreement outlining that the claimant’s salary covered such extra work, the claimant should be paid for such extra hours.  The respondent was ordered to pay the claimant £1,019.75 in compensation for the overtime worked.

Practical Lessons

The main case relied on by the respondent (Driver v Air India [2011] IRLR 992) makes it clear that employers are not always required to provide extra pay for employees for work done out of normal hours.  That is particularly true where the employee is expected to complete the contracted work within a contracted time.

But crucially, this requires evidence of an express agreement which did not exist here. Employers should make it clear if extra tasks such as closing the premises are to be considered part of an employee’s standard contractual duties.  If they don’t, tasks that aren’t strictly completed within an employee’s contractual hours could add up and form the basis of a claim like this one.
https://assets.publishing.service.gov.uk/media/5ca3347240f0b625ea3d8eaa/Mr_J_Fitz_v_Holland_and_Barrett_Retail_Limited__1401671.2017.pdf

This case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/