Contractual flexibility clause did not entitle lorry driver to additional pay (EAT)
The EAT has clarified that an employee contractually required to work variable shift lengths is not automatically entitled to additional pay for longer-than-expected days.
Background and tribunal decision
The Employment Appeal Tribunal (EAT) has overturned a tribunal decision which had awarded a lorry driver back pay for hours worked beyond the intended weekly average set out in his contract.
The claimant worked under a contract requiring him to complete five shifts per week. While a typical shift was expected to last nine hours, clause 13 of his employment contract required him to work "such hours… as are necessary" to complete his duties. Following a route review, the employer agreed to a pay rise based on a 47-hour week, and overtime was payable only where an additional full or half-shift (at least 4.5 hours) was worked.
Between 2021 and 2022, the claimant's shifts averaged just over ten hours. He claimed unlawful deductions from wages under section 13 of the Employment Rights Act 1996, arguing that he was entitled to pro rata pay for additional hours worked beyond the 47-hour average.
The tribunal agreed. It found that the flexibility clause required drivers to finish their routes regardless of time taken and concluded that if the employer failed to average out working time, drivers should be paid for the excess.
EAT decision and reasoning
The EAT allowed the employer's appeal, finding the tribunal had misinterpreted the contract. It held that the tribunal had wrongly treated the flexibility clause as creating a contractual right to additional pay.
On a proper reading, the contract set out a clear structure; drivers were salaried for five variable-length shifts each week, with specific overtime payments only triggered for full or half shifts. The EAT emphasised that the flexibility clause permitted shifts to exceed the anticipated length but did not give rise to a separate entitlement to additional pay for those longer days.
The EAT also rejected the implication of a term requiring extra pay where the 47-hour average was exceeded. The contractual framework did not support such a term, nor was it necessary to give business efficacy to the agreement. The tribunal had therefore erred in treating the flexible working expectations as a mechanism requiring further payment.
Learning points for employers
This case is a helpful reminder for employers to ensure clarity when drafting contracts involving variable hours or flexible shift patterns. If flexibility is required, it should be clear whether additional pay is triggered and in what circumstances. Employers should avoid language that could be interpreted as implying a balancing mechanism unless that is the intent. Regular contractual reviews, especially after the operational changes, can help ensure that pay arrangements remain aligned with actual working patters.