Miss Halide Mustafa v ScotNursing Ltd — 2018

Miss Halide Mustafa brought claims for breach of contract and unauthorised deduction of wages arising from her work as call centre staff for ScotNursing Ltd. The tribunal recorded that she had no sufficient qualifying service for an unfair dismissal claim, and a prior application to amend to automatic unfair dismissal had been refused, so the case proceeded only on the contract and wages issues.

The tribunal found that the claimant was employed on a fixed annual salary of \u00a316,867.44, with call centre work arranged on a shift rota and with rostered on-call cover. It accepted that the claimant worked on-call and that she queried how that time was paid, but it preferred the respondents' evidence about the on-call arrangements and the extent of actual work performed during on-call periods.

On the breach of contract claim, the tribunal held that there was no express contractual term entitling the claimant to be paid four times her hourly overtime rate for rostered on-call shifts. It considered whether such a term could be implied by business efficacy, custom and practice, the parties' conduct, obviousness, or statutory route, and concluded that none of those routes justified the term the claimant advanced. It also noted that, although there was some ambiguity in the drafting of the contract, the claimant had been paid her contractual salary and had not proved any contractual loss.

On the section 13 ERA deduction claim, the tribunal concluded that there was no evidence that the claimant had not been paid her salary and no sufficient analysis showing that wages properly payable under the National Minimum Wage Regulations or the contract had been withheld. The claim for breach of contract was dismissed, and the claim for unauthorised deduction of wages under section 13 of the Employment Rights Act 1996 was also dismissed.