IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: 4103805/2022 Heard Remotely at Edinburgh on the Cloud Based Video Platform, on nd September 2022 at am Employment Judge J G d’lnverno Ms H Mackintosh National Schizophrenia Fellowship v Represented by: Mr R Bertram per Citizens Advice Scotland — 2022

The claimant was employed as a Carer Support Worker from 5 February 2018 until her summary dismissal on 1 March 2022. Her written contract provided that overtime was not paid and that extra hours worked had to be taken, in consultation with the line manager, as time off in lieu. The tribunal found that the claimant regularly worked extra hours, recorded them, and took TOIL during employment, and that there was no agreement to vary the contractual clause so as to make those hours payable in money.

At termination, the claimant had accrued but not yet taken 45.5 hours of TOIL. The tribunal found that the increase in contracted hours from 17.5 to 21 hours in June 2020 did not affect the TOIL clause. It held that, as at the effective date of termination, the claimant had no contractual right to be remunerated for the untaken TOIL and no other entitlement in law to receive payment for it.

The tribunal considered whether the claim could engage section 13 of the Employment Rights Act 1996 and the definition of wages in section 27. It referred to Vision Events UK Limited v Paterson and rejected any basis for implying a term that the claimant should be paid for accrued hours on termination. It also addressed unjustified enrichment, or quantum lucratus, but found no such obligation because the parties had expressly agreed that extra hours would be taken as TOIL rather than paid and that right depended on continued employment.

The claim was therefore dismissed in full.