EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term – An Employment Tribunal took the view that a contract of employment provided for overtime only to be paid at the discretion of the employer, and that therefore the Claimant could not complain after dismissal that he should have been paid for hours he worked beyond the maximum of his normal working week. Held that it was wrong to construe the contract as providing no obligation to pay at least the normal hourly rate, and in any event it would be a breach of contract not to consider the exercise of the discretion to pay at an enhanced rate. If that breach had been established, the ET would have to assess the damages on the basis that the employer would have taken a decision in good faith which was rational, and not capricious, whether and how to exercise the discretion. This depended upon a factual conclusion as to whether the Claimant had in fact worked the hours he claimed, as to which the ET failed to make any proper determination. The matter was remitted to the ET for re-determination in accordance with the Judgment and Order.
A separate appeal, in respect of non-payment of meal allowances, was dismissed since there was no evidence before the Tribunal to support the claim (even though it was raised in the ET1 and noted by the Employment Judge as one of the issues in the case), and the ET’s decision to reject the claim was thus plainly and obviously right.
Langstaff J P
 UKEAT 0331 – 12 – 1107
England and Wales
Updated: 20 November 2021; Ref: scu.515392