In a recent case, the Claimant was employed as a shop supervisor for a number of fixed hours per week, although the number of hours worked varied on occasions. He was required to cover for the store manager if he was absent due to leave or sickness. This involved opening the store in the morning and closing the store at night, among other tasks. The store manager said that it was custom and practice across the retail sector for managers not to be paid for time spent closing the shop. He also said that this process takes just a few minutes. The Claimant said that over the course of his employment he worked for over two hundred hours after his contracted shifts were due to finish, for which he was not paid.
Closing the store involved a four-stage process: Closing the tills on the shop floor; reconciling the tills in the back office; closing the register, and closing the store. The Claimant said that he also had to undertake other tasks at the end of the day including cleaning, fridge and freezer temperature checks and sales target calculations.
The Claimant brought a tribunal claim for the failure to pay him for additional work carried out as part of the shop closing procedures when he was covering for the store manager.
The key question for the tribunal was whether or not the Claimant was contractually entitled to be paid additional wages as overtime, when locking up the premises, after the end of the hours of his shift.
The employee was employed for a fixed number of hours, although he would sometimes work additional hours when covering for the store manager. On the facts, the tribunal found that the employer operated an (unwritten) overtime scheme where employees would be paid for additional hours worked, over and above their contractual hours.
Taking into account the written contract for fixed hours, and the unwritten overtime arrangements, the tribunal found that it was an implied term of the contract that if a member of staff worked extra hours, by agreement with or at the request of a manager, they would be paid for that work. There was no express term in the contract of employment stipulating that additional work, outside the contracted hours, would be unpaid. In other words, there was nothing in writing that made it clear that when covering for the manager, the Claimant would have to complete the shop closing procedure without pay and that this is considered part of his normal duties which are compensated for in the hourly rate. As an hourly paid member of staff, it followed that he was entitled to be paid for all the hours he worked. As the time limit for unlawful deductions claims is restricted to recovery of sums owed for the two years preceding the date of the claim, the Claimant was awarded a sum of just over £1,000 for the unpaid overtime worked in the 2 years prior to his claim.
Comment
It may be agreed between the employer and employee that the hourly wage or yearly salary covers work done by the employee, even if done in excess of, or out of the contracted hours of work. This would apply where it is anticipated that the employee should be able to complete the contracted work within their contracted hours. In those cases, the employee would not necessarily be entitled to extra pay where extra time is spent completing that work. It is common for the contract of employment to state that an employee may be required to work additional hours outside their normal hours of work where reasonably required in performance of their duties; and that overtime will either be paid or unpaid. Where the contract does not stipulate whether or not overtime will be paid, the tribunal will consider any implied terms that have arisen through custom and practice or any verbal agreement.
A salaried employee, especially a more senior employee, is more likely to expect and be expected to work as may be reasonably necessary beyond his or her normal hours to perform their role, and their salary level would reflect this expectation. However, regardless of any agreement to the contrary, or in the absence of any agreement for paid overtime, all workers (other than limited exempted categories of workers) are entitled to receive at least the National Minimum Wage. This is payable when they are required by their employer to be at their place of work for the purpose of working (even if outside their basic contracted hours), in respect of all hours worked.
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