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Case law: Ruling clarifies when employers must pay employees for extra work performed out of hours

Employers should check their employees do not have to put in unpaid extra time outside their contractual hours to do their job, otherwise they may be able to make a claim for unpaid wages, a recent ruling has clarified.

May 2019

This update was published in Legal Alert - May 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee who worked under a series of fixed hours contracts was promoted. Part of his new duties involved covering for the store manager when the manager was not there. This meant working outside his contractual hours for no pay, for example, opening and closing the store, sweeping up and cleaning the refrigerator. Over a period of time, he racked up an additional 200 hours of unpaid work.

His contract did not say he was expected to work additional hours, so it made no provision for paying him for extra hours worked. However, his employer did have an overtime scheme under which workers were paid extra for working additional hours.

The employee resigned and claimed unlawful deduction of wages for the extra hours worked, amounting to £1,780.

The Employment Tribunal found that there had been an unlawful deduction of wages, but only in respect of the time spent opening and closing the store. This, by its nature, had to be done outside his contractual hours. The other work, such as sweeping and cleaning, could have been done within his contractual hours, so his claim failed in that respect. The ET also said his claim could not go back further than two years, so it limited his award to £1,019.

Operative date

  • Now


  • Employers whose employees have to work additional hours to get their job done should:
    • provide for this expressly in their employees’ contracts;
    • specify whether those additional hours are paid and at what rate;
    • if they are unpaid, check that they will still be paying employees the hourly national living or minimum wage when those hours are factored in.

Case ref: Fitz v Holland and Barrett Retail Ltd 1401671/2017

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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