Change to pay method

Case 3: The facts

Mr Bates worked a three-week shift system of 18, 45 and 60 hours. His basic pay was based on an average 41-hour week, and so was the same each week. He was then entitled to overtime at time-and-a-half for any additional hours that he worked.

When Chubb took over the business in a TUPE transfer, it paid him monthly and for the hours he actually worked. Although he still worked the same shifts and ended up with the same amount over a three-week period, this meant that his wages varied each month.

Bates said he should be entitled to overtime in any week that he had to work more than 41 hours because those were his contracted hours.

The ruling

The EAT held that, by changing the method of payment, Chubb had chosen not to comply with the TUPE arrangements; this amounted to a unilateral variation of contract. Because Chubb were now paying him for the hours he actually worked, Bates was entitled to overtime for the two weeks out of three that he was working more than 41 hours.

Chubb Security Personnel v Bates UKEAT/0358/04