Labour & European Law Review Weekly Issue 265 19 April 2012
Are employees entitled to be paid overtime when they have been unable to take their full contractual break because of their workload? No, said the Employment Appeal Tribunal (EAT) in Blair and ors v Hotel Solutions London Ltd - a requirement to be paid for overtime does not arise just because an employee is asked to do more work than can be done within the normal working day.
The claimants, who worked for a specialist cleaning firm at the Sheraton Hotel in West Drayton, claimed that they were unable to take more than half an hour off per day because of their workload.
Their employer required them to clean no more than 15 rooms per day, but the employees claimed that it wasn’t possible to clean rooms to the required standard within the working day and so only took half an hour’s break.
A collective agreement which was incorporated into the contract provided that employees were entitled to two 15-minute breaks and one half-hour main meal break or one main break of an hour.
The collective agreement also stated that: “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.”
The cleaners brought claims for unlawful deduction from wages for non-payment of overtime relating to the half-hour per day they were not taking as a break.
The company argued that if the claimants were unable to finish the work in time they merely had to inform the employer and were entitled to go home at the allotted time.
The Tribunal found that although the company “discouraged” the cleaners from saying they could not get all the work done on time, they were still not entitled to be paid for any overtime as this was only payable when the company expressly asked them.
The Tribunal said that the cleaners’ argument - that they should be paid overtime to finish the work because they had been given too much to do - amounted to a “charter for the lazy or the slow.”
If the company disciplined them for not working hard enough, the claimants could either resign and claim constructive unfair dismissal or if they were dismissed for not working hard or fast enough, they could claim unfair dismissal.
The cleaners appealed, arguing that the voluntary overtime clause did not expressly require the employer to request that they work overtime and that a requirement to work overtime can arise when an employer asks an employee to do more work than can be done within the normal working day.
The judge’s reference to “a charter for the lazy or the slow” ignored the inequality in bargaining power between employer and employee and the potential for exploitation.
However, the EAT did not agree. Dismissing the appeal, it ruled that the judge was correct to hold that the collective agreement expressly required the company to request the cleaners work overtime whether at short notice or not. The employee could then decide whether or not to undertake that work.
There was no evidence that the company had ever tried to compel the cleaners to work overtime.
The EAT held that their essential complaint was that they had been unable to take their contractual one hour break but that this did not give rise to a claim for unlawful deduction from wages under the terms of their contract.