Christine Jamieson examines a recent employment tribunal case that underscores the importance of precise contractual drafting and explores how far implied terms can go in determining pay entitlements for hours worked beyond the stated norm.
In the recent case of Brake Bros Ltd v Hudek, the Employment Appeal Tribunal (EAT) considered whether a lorry driver who worked more hours that intended under his contract was entitled to additional pay for those extra hours.
Background
The claimant, Mr Hudek, was employed by Brake Bros Ltd as a lorry driver (based out of their Reading Depot) from 18 February 2019 until 31 December 2021. He is still employed by Brake Bros, as of 1 January 2022, in a different role.
Mr Hudek’s contract as a lorry driver required him to work five shifts per week averaging 9 hours per shift (inclusive of breaks), noting that those hours may fluctuate and vary according to the needs of the business.
His contractual hours stated that: “Your normal weekly working hours are 45 (to include breaks / not including breaks) completed within any shifts 5 from 7.” His contract also provided that his role required 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.
On reviewing hours, Brake Bros found that several delivery routes out of Reading were more than 9 hours long. They therefore introduced a 4.4% salary increase to allow for an additional 2 hours pay per week.
Overtime was paid for any additional full shift or half shift worked. If a normal shift took longer than expected but did not involve at least an additional 4.5 hours' work, no additional payment was made.
Mr Hudek noticed his shifts averaged ten hours and seven minutes between 2021 and 2022, and he brought an Unlawful Deduction from Wages claim, claiming he should receive pro rata payments, based on his annual salary, for the additional hours he had worked.
Law
Section 13 to 27 of the Employment Rights Act 1996 (ERA) protects workers from unlawful deductions from wages (which also applies to non-payment or under-payment of wages).
It is unlawful for an employer to make a deduction from a worker's wages unless:
- The deduction is required or authorised by statute or a provision in the worker's contract; or
- The worker has given their prior written consent to the deduction.
Unlawful deductions claims are important because they enable workers to claim unpaid (or underpaid) wages in the employment tribunal while the employment relationship continues.
Decision
An Employment Tribunal initially upheld the claim, finding that the contractual terms provided flexibility given that drivers were expected to complete the deliveries allocated to each shift, regardless of how long they took.
However, it was of the view that a principle of the contractual agreement was that occasions when drivers worked more than their expected shift hours would be "balanced out" by others when they worked less. It found that it was implied that, if working hours did not average out over a reasonable period, Brake Bros would pay drivers for hours worked over their 47-hour contractual commitment. However, the overtime provisions were directed only at additional shifts or half shifts.
Brake Bros appealed this decision.
The EAT found that the tribunal erred in its decision and dismissed Mr Hudek’s claim. It found that it was incorrect for the tribunal to extend additional payment for flexibility, which was an enforceable contractual obligation, over and above the overtime entitlements which were provided for separately. The contract provided basic pay for working five shifts of variable length each week. There was no term implied that provided pay for hours worked beyond intended normal working hours, other than when the overtime provisions were engaged.
Comment
This case is an example of the benefit of clear drafting of a Contract of Employment, to minimise the chance of a dispute between the parties about the true meaning of a term.
When a dispute arises in the employment context, the starting point for ascertaining the intention of the parties is usually the written contract.
However, it may become necessary to look beyond the written document to the course of dealings between the parties and their subjective beliefs about what obligations they have entered into.
This may be because:
- The written document does not reflect the true intention of the parties or was a sham.
- The parties did not intend the written document to be an exclusive record of the terms agreed between them.
- The written documents are sparse and shed little light on the actual arrangement envisaged.
Implied terms are terms that have not been specifically set out or stated by the parties at the time of entering into the contract. In some cases, custom or practice (where an action is "reasonable, notorious and certain"), may indicate a term is implied.
Therefore, had Brake Bros made a habit of paying for extra hours, despite the contractual wording, the original Employment Tribunal’s decision may have been upheld.
It is however important to keep in mind when exercising a contractual requirement for an employee to work additional hours for the proper performance of duties without additional pay, that those additional hours do not bring the employee’s average hourly rate of pay below the relevant National Minimum Wage rate.
Published 10 July 2025
