The claimant in Vision Events (UK) Ltd v Paterson worked as an event technician.  He was paid a salary and an hourly rate for overtime.  When he was promoted to the position of multimedia producer, his salary increased from £21,000 to £28,000 but his overtime pay ceased.  He was however entitled to participate in a flexitime scheme, whereby if he worked more than his contractual 45 hours a week he was entitled to take time off at a time to suit his employer.  There was no documentation in the handbook or the contract of employment on how accrued but untaken flexi-hours would be dealt with on termination of employment.

When, four years later, the claimant was made redundant, he asked to be paid for in excess of 1,000 hours of flexitime.  His employer offered to pay a portion of the hours but the claimant refused and the offer was withdrawn.  At the Employment Tribunal, his claim for unfair dismissal was rejected but the unlawful deductions from wages claim for failure to pay the flexitime hours succeeded and the employer was ordered to pay him over £12,000.

The EAT, by a majority, overturned the Tribunal's decision.  They applied the usual tests of whether to imply a term into an employment contract:

  • is it necessary to make the contract work; or
  • was it a term which both parties would have said was agreed between them?

The EAT concluded that it failed both tests.  The Tribunal had asked if a term should be implied in order to make the contract fair: that was not the correct question.  The fact that the employer was prepared to make a "goodwill offer” to the employee of payment of part of those hours did not alter the position; it was not a concession that they were legally required to pay the employee. 

Clearly it would have been better if there had been something in writing dealing with the position on termination.  The claimant here was close to winning his case, the EAT minority accepting his position that it was obvious that he did not agree to work for no pay.