Overtime

Case 3: The facts

Mr McDonald and Mr Thomson were chargehands in “hit squads” carrying out emergency road and environmental repairs. When appointed, they were asked to extend their working day by 15 minutes at either end – to do a vehicle check in the morning and end-of-day documentation in the evening. The extra hours were not written into their contracts of employment, but McDonald and Thomson worked them and were paid overtime for doing so; they said they thought this was part of their contract but the council said it was not.

The next year, the council negotiated new terms with the union to achieve harmonisation. Under the agreement, the additional half-hour per day would become contractual, meaning that it should be taken into account in calculating holiday, sick pay and pensions. McDonald and Thomson argued that the additional hours had always been contractual and should have been included in those calculations all along.

The ruling

Just because something has been paid for a certain period of time, the EAT said, this does not make it a contractual right. Accepting the tribunal’s findings that the overtime was not originally intended to be guaranteed as part of the contract, it ruled that the overtime did not become contractual until the new agreement had been negotiated.

North Lanarkshire Council v McDonald & another UKEATS/0036/06