Both of the claimants are employed by the Road Service which is part of the respondent.  At first there was a procedural issue on the basis that the second claimant had not signed his ET1 form; instead it was signed by the first claimant on his behalf.  The Respondent sought to have that claim struck out.  However, the Tribunal found that the two cases were identical and that their grievance had been taken jointly by the respondent, the LRA dealt with both cases simultaneously and there would be no disadvantage to the respondent in allowing the cases to proceed simultaneously.

In 2018, the two claimants successfully applied to be included in the Emergency Response Controller role.  This role gave additional payment for employees making themselves available outside of normal working hours.  The purpose of it was that the on-call staff member would receive calls relating to out-of-hours road issues such as flooding or obstruction.  That would then be relayed to other bodies who would decide upon the remedy.  The claim made was that the additional payment should have been paid at overtime rates instead of the flat-rate allowance paid by the respondent.

The Overtime Pay Policy stated:

‘When you are unexpectedly called into work outside normal hours…3 hour credit should be counted towards overtime even though the work may have taken less than three hours.  This applies whether or not on-call/standby/availability allowance is payable.’

The respondent argued that this did not apply as it was not ‘unexpected’.  Whilst on rota the phone call could not be predicted it could not be said that it was ‘unexpected’.   The respondent further argued that the claimants were not ‘called into work’ but rather they could do it via mobile telephone as it was informing other agencies.  There was an introductory meeting arranged for those taking on the role yet the two claimants were unable to attend.  The Tribunal noted that it was unsatisfactory that a note was not made relating to that meeting which had discussed payment.   However, the claimants had been informed in their first claim that overtime was not payable for this role.

In examining the evidence against the law the Tribunal found that the claimants had failed to satisfy on the balance of probabilities that there was an unlawful deduction.  This was based upon the fact that their role fell outside the scope of the Overtime Pay Policy as detailed above as it was not regarded as ‘unexpected’.  Additionally, there was no specifically negotiated agreement which would allow for the overtime.  The case was dismissed.

Practical Lessons:

This case demonstrates the importance of having well drafted policy documents even in the general sense.  In the specific point in this case, it meant that the Overtime Policy had been drafted to the extent that it would only capture the unexpected situations and that allowed the respondent to argue that the claimant’s situation did not fall into the policy.  The key learning point from this case is ensuring that such policies are kept up-to-date and are written to reflect the roles within the employer.