Veitch Penny LLP - Exeter | Crediton, Devon

Case

Forbouys Ltd v Rich

Issues

(1) Pay and Benefits - Deductions
(2) Overtime - Time worked in excess of contractual hours (not authorised)
(3) Regulation 4(1) of Working Time Regulations 1998

Facts

The Applicant regularly worked in excess of her contractual hours despite the Respondent having notified her that there was no operational reason for her to exceed these. She ultimately resigned and brought proceedings in the Tribunal against the Respondent complaining of their failure to pay her for overtime was a breach of the Working Time Regulations 1998 (WTR 1998).

The Employment Tribunal upheld the claim and the Respondent appealed.

Decision

It was held in this case that the Respondent had not authorised the overtime, and on the contrary Regulation 4(1) of the WTR 1998, required workers to consent to working overtime hours, which consent had been absent in the present case.

However even assuming that she could rely on Regulation 4(1) it did not assist her claim for the simple reason that the Section was silent as to a worker's entitlement to overtime payments. Furthermore assuming that the Respondent had breached Regulation 4 by requiring her to work in excess of 48 hours per week, no damages were payable and could not form the basis for an unlawful deduction claim under Section 13(3) of the Employment Rights Act 1996. The enforcement machinery provided for by the WTR 1998 did not extend to a right of compensation for breach of Regulation 4. The only relief available would be civil relief by way of a Declaration.

It was concluded therefore that the Employment Tribunal had erred in finding that the Applicant had been legally entitled to overtime payments so that a failure by the Respondents to make such payments amounted to an unlawful deduction of wages.

Comments

This case considers whether it is proper for a Tribunal to decide that an employer had authorised overtime where it had allowed the employee to work a considerable number of hours in excess of basic working hours. The Applicant's contract specifically stated that overtime would only be payable if this was authorised in writing by the Company. Here it had not been and the employer had written to the Applicant telling her not to work such long hours. The Tribunal did take the view that the employer was merely paying "lip service" to the provision with a view to avoiding paying her overtime pay but the EAT held that the WTR did not affect the overtime provision in her contract, and did not give her the right to a civil action of damages for overtime pay.