Lorry driver was not entitled to be paid for overtime hours in Brake Bros Ltd v Hudek

Mr Hudek was contracted by Brake Bros Ltd to work five shifts per week for a fixed salary. Each shift was intended to be 9 hours long (later increased to 9.4), but his contract stated that he would be required to work “such hours as were necessary for the proper performance of his duties.” Overtime was only payable if he worked an additional full or half shift, with a half shift defined as at least 4.5 hours. If he worked beyond the standard shift length but less than 4.5 hours, no additional pay was provided.

Between 2021 and 2022, Mr Hudek worked an average of over 10 hours per shift and brought a claim for unlawful deductions from wages, arguing that he should be paid pro rata for all time worked beyond his intended hours. The employment tribunal accepted this, finding an implied term that hours should be averaged over time, or else paid as additional wages. It awarded Hudek nearly £4,700.

However, the EAT disagreed. It held that the contract clearly allowed for variable shift lengths and that Mr Hudek was entitled to his salary for working five shifts per week, regardless of minor overages in hours. There was no basis, either through business efficacy or the unexpressed intentions of the parties, to imply a term requiring extra pay for time worked beyond the average unless the express overtime provisions were triggered. The EAT found that the Tribunal had incorrectly treated the contract's flexibility as an entitlement to additional pay, effectively creating a form of flexitime not supported by the contract’s language.

This decision reinforces that implied terms cannot override express provisions. Employers should ensure that contracts clearly state when additional pay is due and that flexibility in working hours does not automatically entitle employees to extra wages.