Weekly work

Beattie v Age Concern

There is often a difference between the terms stipulated in a contract and the reality experienced by the employee.

In Beattie v Age Concern, the Employment Appeal Tribunal (EAT) came out in favour of an employee whose contract guaranteed 15 hours of work, but who regularly worked in excess of 30 hours per week.

Basic facts

Ms Beattie had been working for Age Concern for ten years as a care worker when she went off on an extended period of sick leave in September 2005. Under her contract of employment she was entitled to six months half pay and six months full pay.

Her contract stated that her normal working week was 15 hours, “but could be significantly more”. It then went on to say that her “normal working hours are as agreed between you and the Home Services Manager.” Ms Beattie claimed that her normal working hours usually came to more than 30 every week.

However, when it came to payment during her sick leave, her employer said they would only pay for the 15 hours she was contractually required to work. Ms Beattie said that her sick pay should reflect the hours she had actually worked.

Tribunal decision

A tribunal chair sitting alone agreed that, on average, Ms Beattie worked over 30 hours per week, and in the 12 weeks leading up to January 2005, she had worked an average of almost 35 hours per week.

Looking at the contract of employment, it also agreed that although the working week was set at 15 hours, her normal working hours were those “as agreed” with her manager such as working weekends and accepting work allocated to her.

The tribunal agreed that “these factors all point towards an acceptance by the respondent that the claimant was obliged to work more than 15 hours each week. However, equally it was clear the claimant clearly did not accept that obligation as she chose to refuse to work the extra hours on Christmas day; she chose not to work every weekend and she did not accept some work which had been allocated to her.”

It concluded, therefore, that Age Concern was not contractually obliged to offer more than 15 hours work, nor was Ms Beattie obliged to do more than that every week. “The contractual normal working week was, therefore, 15 hours, even if the hours normally worked by the claimant had over time become more than 30. There was no contractual variation whether express or implied by conduct.”

EAT decision

The EAT, however, disagreed. It said that the tribunal chair ignored the fact that Ms Beattie had been working more than 15 hours per week in reality, and that this could only have happened with the agreement of her employer. The issue of her “normal” as opposed to “contractual” working week was therefore a straightforward one of fact.

It concluded that although Ms Beattie’s contract only guaranteed 15 hours of paid work every week, both parties were expected to agree the actual hours she would work and that is exactly what had happened in reality.

It said that there was no need for the contract to be varied “since it is plain that agreement as to hours from time to time must have been and was reached between the parties.”

The reference in the sick pay scheme to six months full pay and six months half pay “must naturally bear a relationship to the pay being received before the period of sickness begins.” There was no need, therefore, for a “formal written variation or expressly agreed variation as such of the contract, since it is plain that agreement as to hours from time to time must have been and was reached between the parties”