A recent Employment Tribunal case involving a well-known High Street store has highlighted a problem that many employers may not have addressed regarding overtime pay.

In Mr J Fitz v Holland and Barrett Retail Limited (HB), Mr Fitz successfully claimed that time he spent opening and closing the Holland & Barrett health food store where he was a supervisor, was working time and that he should have been paid for that time.

Mr Fitz was first employed by HB in 2014 as a part time sales associate. He signed a contract of employment which set out his hours of work but made no mention of overtime. However, HB said that employees could work overtime if they wished and for which they would be paid.

Later in 2014, Mr Fitz was promoted to the role of Supervisor with his hours of work and hourly rate of pay being increased together with his new duties including covering for the Store Manager.

Cover involved opening the store in a morning and closing the store in an evening. This was in addition to Mr Fitz’s normal duties. HB said it was custom and practice in the industry for employees not to be paid for opening and closing the store as it only took a few minutes.

However, Mr Fitz disagreed. He said that there were a number of other tasks involved in closing up such as cleaning, checking the fridge and freezer temperature and dealing with performance and sales target information.

Over the course of 2015, Mr Fitz’s hours were increased and he also transferred to a different store. Despite there being discussions about pay and hours of work, some of which were confirmed in writing, there was still no agreement on payment for overtime hours worked.

Mr Fitz subsequently resigned during the course of disciplinary proceedings and claimed that in not paying him for around 200 hours that he had spent opening and closing the store over a period of time, HB had made a series of unlawful deductions from his wages.

The Employment Judge in this case found in Mr Fitz’s favour. The Judge accepted that the additional duties did not take only a few minutes and that there was no documentary evidence supporting the contention that opening and closing the store fell within Mr Fitz’s normal duties.

This case highlights the problem that employers may face if they have employees undertaking additional duties for which they are not paid. Some employees may happily do that additional work but others may not. If there is any doubt as to the status of that additional work, employers are advised to seek agreement or clarification of the employee’s role including clear job descriptions and contracts of employment.

For further help and advice around the topics discussed in this article and the legalities surrounding overtime pay, or other any matters related to employment law, please get in touch with Jonathan Dale, head of our employment law team, by calling (01482) 325242 or emailing enquiries@andrewjackson.co.uk