The employee, Mr Fitz, worked under a series of fixed hours contracts and after becoming appointed as a supervisor, he was expected to provide cover in the store manager’s absence. This included opening and closing the store and end of the day tasks such as checking the freezer & fridge temperature, sweeping, cleaning the fridge and carrying out sales target calculations. This out of hours work was not challenged by the employer and Mr Fitz was not paid for this additional time as it fell outside his fixed contractual hours.
Mr Fitz’s employment contract did not say that he was expected to work overtime or specify whether he would be paid for working additional hours. The employer argued that it was common practice across the retail sector for managers not to be paid for time spent closing a shop; they argued that it only took a few minutes to carry out the tasks. However, the employer did operate a paid overtime scheme which reimbursed other staff for working additional hours.
UNLAWFUL DEDUCTION OF WAGES
Following a dispute about his hours and holiday pay, Mr Fitz resigned and complained to the tribunal that he had suffered unlawful deductions from his wages. He claimed he had not been paid for some 200 hours or so, which he had undertaken when providing cover for his store manager and this amounted to almost £1,780 in pay.
The tribunal held that as there were no express terms on the matter then a term would be implied into Mr Fitz’s contract that he was entitled to be paid for the additional time it took to open and close the store. However this did not apply to the other tasks Mr Fitz claimed he had also undertaken after hours because these could have been done during the working day.
In-light of section 23(4A) of the Employment Rights Act 1996, the tribunal decided that Mr Fitz couldn't recover underpayments going back further than two years preceding the date when the claim was presented which was on 19 December 2017 hence awarded £1019 instead of £1780.
Although this is decision of the employment tribunal and not binding on other tribunals but serves as useful guidance on how tribunals approach legal issues and factual situations.
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