The Claimant was employed by the Respondent as a lorry driver. He presented a complaint under section 13 of the Employment Rights Act, 1996 for unpaid wages. The basis of his complaint was that he had worked for more than his contracted weekly hours and was entitled to pro rata payments based upon his annual salary for the additional hours. The contract of employment required the Claimant to work 5 shifts per week. The intended average shift length was 9 hours (later varied to 9.4 hours) but the contract also provided that he was required to work such hours on each shift as were necessary for the proper performance of his duties. Overtime was contractually payable to drivers only if an additional half shift or shift was worked. The minimum length of a half shift was set at 4 ½ hours. The ET held that the Claimant’s contract of employment provided for an averaging out of his working hours and that was an implied term that, if no such averaging out took place within a reasonable period, the Claimant would be paid for all additional hours worked above the intended average. The Respondent appealed.

The EAT allowed the appeal. Properly construed, the contract entitled the Claimant to his basic salary for working 5 shifts per week of variable length. Neither business efficacy nor the unexpressed intention of the parties justified the implication of a term that he would be paid for hours worked in excess of his intended normal working hours other than when the express overtime provisions applicable to drivers were engaged. The ET’s judgment was set aside and the claim was dismissed.