The claimants, room attendants at a hotel, claimed to be entitled to overtime pay under the terms of their contract, when they were unable to complete the work they were required to carry out each day without having to work during the one hour break to which they were entitled under the contract. The Employment Tribunal held that overtime was entirely voluntary under the contract and that their employer had not in fact required them to work longer hours than they were contracted to work.  Their claim for unlawful deduction of wages failed.  The claimants appealed.

The EAT dismissed the appeal, ruling that the EJ had not erred in his construction of the terms of the contract. Overtime was voluntary and the respondent had to give notice, however short, to the employees and they could then decide whether or not to accept the work. Further, the EAT rejected the claim that the judgment was not Meek compliant. Even though there was no reference to the relevant legal principles, the main issue in this case was a factual one and the EJ was entitled to find on the evidence that the respondent had not prevented the claimants from taking their breaks.
__________________

Appeal No. UKEAT/0412/11/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 17 January 2012

Before

THE HONOURABLE MRS JUSTICE COX (SITTING ALONE)

(1) MS M BLAIR; (2) MS J BEGUM; (3) MS B DHILLON; (4) MS K SANDHU (APPELLANTS)

HOTEL SOLUTIONS LONDON LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellants
MS M BLAIR (The Appellant in Person)

For the Respondent
MR R CLEMENT (of Counsel)

Instructed by:
RBS Group Mentor Services
2nd Floor, 1 Hardman Boulevard
Manchester
M3 3AQ

UNLAWFUL DEDUCTION FROM WAGES

CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term

The Claimants, room attendants at a hotel, claimed to be entitled to overtime pay under the terms of their contract, when they were unable to complete the work they were required to carry out each day without having to work during the one hour break to which they were entitled under the contract. The Employment Tribunal held that overtime was entirely voluntary under the contract and that their employer had not in fact required them to work longer hours than they were contracted to work. Their claim for unlawful deduction of wages failed. The ET's Judgment was upheld, no error of law being disclosed.

1. This is the full hearing of the Claimants' appeal against the judgment of Employment Judge Hyams, sitting alone at the Watford Employment Tribunal, which was promulgated with reasons on 28 April 2011, dismissing their claims of unlawful deductions from wages in relation to unpaid overtime. Three of the Claimants are here today. They are unrepresented, their solicitors having apparently come off the record on 4 January this year, although the EAT was not formally notified of this until 13 January. Unfortunately, no agreed bundle of documents and no skeleton argument were lodged on the Claimants' behalf. However, they have indicated that they are content to rely upon the documents that were submitted with their Notice of Appeal and upon the grounds of appeal settled by their then legal representative, and they were happy for the hearing to proceed today on that basis. The Respondent is represented by Mr Clement.

1. The point raised in this appeal is a short one, although it arose in a rather curious manner. The Claimants were all room attendants employed by the Respondent, a firm of specialist cleaning contractors, to work at the Sheraton Hotel at West Drayton. On 9 July 2010 they lodged ET1s complaining, in very brief terms, that the Respondent was wanting them to clean 20 rooms each day, alleging that there had been amongst other things a breach of contract and an illegal deduction of wages. Their employment was transferred to the Respondent on 26 January 2009, pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, and when they had been employed by the transferor they were required to clean only 15 rooms a day.

1. The Respondent resisted the claims and, at a CMD on 9 November 2010, the main issue to be determined was said to be whether the Respondent had made unlawful deductions from each of the Claimants' wages, contrary to section 13 of the Employment Rights Act 1996.

1. At the hearing before Employment Judge Hyams the Claimants were represented by counsel and, after discussion, the issue for determination changed in the light of the Claimants' witness statements, which had been served on the day before the hearing. Their claim was then identified as a claim for half an hour's pay per day on a continuing basis since January 2009, as a result of the Claimants being in practice unable to take more than half an hour per day off during the working day.

1. The Claimants' contracts of employment provided as follows in respect of overtime, the relevant provision being contained in Schedule 1 to a Union Agreement dated October 2007, a collective agreement incorporated into the terms and conditions of employment,

"1.00 Hours of Work

1.01 All employees are employed on the basis of a 40 hour attendance and entitled to 2 x 15 minute breaks and 1 x one half hour main meal break, or 1 main break of 1 hour's duration. This may vary on a pro-rata basis.

1.02. The working hours are based on a 35-hour week. The timing and allocation for breaks is subject to the business demands of the Department."

1. Clause 3.0, "Overtime payment", so as far as is relevant, provided at clause 3.01:

"Overtime is voluntary, but due to the nature of the business, employees may be required to work overtime at short notice and their co-operation in this matter is necessary."

1. The Employment Judge heard evidence from all of the Claimants and from the man who had been their trade union representative during 2009. He heard also from Mrs Jaleru, the Respondent's Operations Manager.

1. The Claimants' evidence was that in practice they were unable to take their full hour per day of rest breaks because of their workload, namely having to clean 15 rooms and attend staff or health and safety meetings when required. The evidence from their trade union representative was that they were unable to take more than half an hour's break each day. However, Mrs Jaleru's evidence contradicted this. Her evidence was that if the Claimants were unable to finish their work in time, they merely needed to tell her and go home at the allotted time. If any of the Claimants stayed behind to work additional hours (that is, hours above those which they were contracted to work), that was voluntary on their part.

1. Initially the Respondent had sought to obtain the agreement of the Claimants to clean 20 rooms per day and not just 15. The Claimants had refused to agree to this, and as a result the Respondent did not require them to clean more than 15. Cleaning 20 rooms was not therefore a requirement under their contract. It was the Claimant Ms Blair's evidence that, even so, it was not possible to clean the allotted 15 rooms per day because the Respondent required her and her colleagues to clean more thoroughly than was required by their previous employer, that is the transferor under the TUPE transfer.

1. The Employment Judge came to the conclusion on the evidence he heard that the Respondent did not expressly require the Claimants to clean 15 rooms before leaving the hotel. He therefore preferred Mrs Jaleru's evidence to that of the Claimants, which he was of course entitled to do. He also accepted her evidence that the Claimants were not told that they could not have an hour per day in total by way of rest breaks. He then added these words:

"I also came to the conclusion that the Respondent discouraged the Claimants from saying at the end of their working days that they had not cleaned the requisite 15 rooms, so that they tended to stay and clean that number of rooms, and if they had to work over and above their intended 7 hour working day in order to do so, then they did not get any extra pay for doing so."

1. On behalf of the Claimants their counsel submitted to the Employment Judge that the Claimants were in practice required to work overtime and that they should therefore be paid for it, even though the Respondent did not expressly ask them to stay behind after the end of their normal working day, or to take less than their full entitlement to an hour off per working day and finish their allotted tasks. In rejecting their claims the Employment Judge found as follows at paragraphs 10 and 11:

"10. I was unable to accept that proposition. If it were correct, then an employee could claim that his or her employer had given him or her too much to do, and that the employee should be paid for working overtime in order to finish the work. That would be a charter for the lazy or the slow. It was in my view open to the Respondent to require the Claimants to clean 15 rooms per day, and it was open to the Claimants to go home at the end of their 7 hour working day. If the Respondent then thought that the Claimants had not worked hard or effectively enough, then the Respondent could subject the Claimants to disciplinary or capability proceedings (as the case may be). If doing so was in breach of the implied term of trust and confidence or a fundamental breach of the obligation to utilise a reasonably safe system of work, then the Claimants could resign and claim constructive unfair dismissal. If the Claimants did not resign but were subsequently dismissed for not working hard or fast enough, then they had a remedy in the form of the right to claim unfair dismissal.

11. In my view, those factors all militated against the contention of Mr Davies on behalf of the Claimants that the fact that they could not in practice take their permitted 1 hour of rest per 8 hour working day (i.e. with 7 hours of working and the 8th hour spent in 'attendance' at the workplace) meant that the Respondent had required them to work overtime. In my judgment the Claimants would be eligible for overtime pay only if they were expressly required by the Respondent to work additional hours, i.e. hours above the number of 7 per day which was provided for by their contracts of employment. That was not what had occurred, and therefore the Claimants' claims of unpaid wages by reason of not being able to take their full hour per day of rest had to be dismissed."

1. The remainder of his Judgment deals with other matters that are not the subject of this appeal, and I therefore say no more about them.

1. In their first ground of appeal the Claimants contend that the Employment Judge erred in law in his construction of the contractual terms, in determining that express instruction was required before an employee can claim pay for overtime done. The Claimants suggest that no such express term can be found in the contract. Whereas many contracts of employment include a clause that overtime is worked and therefore payable only with prior agreement, no such clause existed here, suggesting that prior express instruction that work was to be done as overtime was not necessary under this contract. A requirement to work overtime can arise merely because an employer has asked an employee to do more work than can be accomplished within the normal working day, and the Employment Judge's reference to "a charter for the lazy or the slow" ignores the inequality in bargaining power between employer and employee and the potential for exploitation.

1. In ground 2 it is contended that the Employment Judge had changed the terms and conditions of the contract by adding a requirement for an express request to be made before additional work could be classified as overtime and, in error, was thereby attempting a form of "social engineering".

1. In their third and final ground it is contended that the Employment Judge's reasons are not "Meek compliant", a reference to the need to provide a clear and adequately reasoned decision, as established in Meek v City of Birmingham District Council [1987] IRLR 250. It is suggested that there is insufficient explanation of how the Employment Judge's reasoning has been applied to the facts and the law so as to arrive at his conclusions.

1. Setting aside observations about the exploitation of workers or charters for idleness, which are in my view unhelpful, the starting point in this appeal is the correct construction of the contract. As Mr Clement submits, paragraph 3.01 of the Union Agreement states expressly that "Overtime is voluntary". What follows after that unambiguous statement is an exhortation to employees to co operate, if their employer requires them to work overtime at short notice, but that cannot limit the express condition in the contract that overtime is and remains voluntary. It seems to me that the Claimants are effectively seeking to elevate the requirement for co operation in certain circumstances to a general requirement to work overtime, which is not what is provided by the terms of their contract.

1. Further, there was in this case no evidence before the Employment Judge that in practice the Respondent had ever sought to compel the Claimants to work overtime. Their essential complaint was that they were so busy each day cleaning the 15 rooms thoroughly that they felt that there was insufficient time for them to take more than half of the one hour break to which they were contractually entitled. It appears that, when asked, the Claimants were unable to give any particulars about any dates on which they felt that they had been unable to take the whole of their one hour break due to the alleged pressures of their work. Rather, against a background of what appears to have been a lack of clarity as to what they were actually claiming before the Tribunal, their evidence appears to have amounted to a generalised complaint that, since January 2009, they had been unable to take their contractual one hour break each day. The Employment Judge rejected this evidence.

1. In my judgment, the Employment Judge did not err in his construction of the terms of the contract. I consider that his analysis was entirely correct. The correct construction of paragraph 3.01 of the Union Agreement is that notice, whether short or not, would have to be given to employees in order for them to know that the employer had requested that they work overtime. The employee could then decide whether or not to undertake that work. For these reasons there is no merit in either of the first two grounds of appeal. On the factual dispute, the Employment Judge clearly heard the evidence on both sides and preferred the evidence of the Respondent, which of course he was entitled to do.

1. Further, I reject the suggestion made in ground 3 that the Employment Judge's decision on the issues is not sufficiently clear or adequately reasoned. It is correct that there is no reference to the relevant legal principles, and it would have been helpful to state them, even where they are well known and both sides are legally represented. The main issue to be determined in this case, however, was a factual one, namely whether there had been unlawful deductions from wages. The Employment Judge clearly found on the evidence that the Respondent did not in fact prevent the Claimants from taking any part of the one hour break to which they were entitled under their contract. For the reasons he gave he did not accept the Claimants' evidence. In the circumstances the Claimants' case was doomed to fail, and for those reasons this appeal must be dismissed.