Appeal decision provides guidance on the use of flexible hours of work clauses in employment contracts

In the Employment Appeal Tribunal (EAT) case of Brake Bros Limited v Hudek, the EAT overturned the decision of the Employment Tribunal (ET), providing clarity on the use of clauses that require employees to work ‘such hours as are necessary for the proper performance of their duties’ for no extra pay.

Case summary: Brake Bros Limited v Hudek

Mr. Hudek, a lorry driver for Brake Bros Limited, claimed he was entitled to additional pay for hours worked in excess of an ‘intended’ 47-hour work week. His contract required five shifts per week, with an ‘intended average’ shift of 9.4 hours, and included a clause stating he would work such hours ‘as are necessary for the proper performance of his duties’ on each shift. Overtime was only payable for additional full or half shifts.

While the ET accepted that the contract implied a right to additional pay when average hours were exceeded, the EAT disagreed and set aside the award of over £4,600 for unpaid wages.

EAT’s key findings

• The EAT held that Mr. Hudek’s salary covered the variability in shift lengths and that he was only entitled to extra pay when overtime conditions—specifically, extra full or half shifts—were met.
• The EAT found that the clause requiring work ‘as necessary’ for performance of duties introduced clear contractual flexibility. This flexibility did not create an implied right to additional pay simply because average weekly hours were exceeded.
• The ET’s approach effectively created a flexi-time scheme not supported by the wording or commercial rationale of the contract. The EAT rejected this, finding no basis to imply such a term from business efficacy or the parties’ intentions.

How Employers Should Draft Flexible Hours of Work Clauses in Employment Contracts

This judgment offers helpful guidance for employers when drafting employment contracts involving clauses requiring an employee to work additional hours to fulfil their duties for no extra pay.

• Clauses requiring employees to work ‘such hours as necessary’ can lawfully provide flexibility without giving an entitlement to extra pay—provided that such clauses are clear and unambiguous.
• Clearly specify if overtime is payable and distinguish between expected flexibility and true overtime.
• Ensure that variations to shift lengths or pay arrangements are well-documented and consistent with written contracts.
• Keep track of any hours worked above the standard contractual hours to ensure that employees are being paid at least the National Minimum Wage and that employees are receiving adequate rest during the working week.

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