Ms C Woodruffe v King's College Hospital NHS Foundation Trust: 2306421/2025
EMPLOYMENT TRIBUNALS
Case No 2306421/2025
Between
Ms C WoodruffeClaimantKing's College Hospital NHS Foundation TrustRespondent
Before
Employment Judge Eoin FowellDate 28 April 2026
JUDGMENT
[1]The complaint of unlawful deduction from wages, in respect of overtime pay, is struck out on the basis that it has no reasonable prospect of success, there being no legal entitlement to the payments in question. JUDGMENT[2]The complaint of unlawful deduction from wages, in respect of overtime pay, is struck out on the basis that it has no reasonable prospect of success, there being no legal entitlement to the payments in question.
REASONS
[1]These written reasons are provided at the request of Ms Woodruffe, following oral reasons given at the hearing on 28 April. As usual some editing has taken place for the sake of clarity, and here and there some points are expanded, so these written reasons shall stand as the final version.[2]This is the Trust’s application to strike out the claim of unlawful deduction from wages on the basis that it has no reasonable prospects of success. The respondent’s position[3]The respondent’s position is that there is no entitlement under the contract to overtime payments. They rely in particular on the contract of employment which states that: “Overtime 1 of 8 Overtime may only be worked at the request of your manager. Staff in pay bands 1 to 7 are eligible for overtime payments for hours worked in excess of the standard full time hours of 37.5 hours per week.”[4]That’s provision is supplemented by a policy on overtime which states: “Overtime can arise when staff have to work extra hours in the course of their normal job, because shifts are extended in order to meet the needs of the service. Often the need for extra hours arises on the day, e.g. to cover theatre overruns. When people in band 2-7 posts work overtime and the overtime is approved in advance by an appropriate manager (e.g. nurse in charge), people will receive a payment in line with the rules set in section 3 of the AfC Handbook. People may request to take time off in lieu as an alternative to overtime payments but where, for operational reasons, they are unable to take time off in lieu within three months they will be paid at the overtime rate.”[5]They also rely on the principle that a term cannot be implied which contradicts and express term the contract.[6]It is not disputed that on occasion Ms Woodruffe worked beyond her contracted hours and that she raised this with her managers. On 17 January 2024 she emailed Terry Anne Brown with the subject header “Highlighting a workload imbalance that was not my decision”. It was not expressly about overtime. It was about the division of work between her and her colleague Lucy, and the fact that members of staff were sending patients to her after 5 pm: “… on many occasions I am receiving patients after 5:00 PM and I have to reflect the 35.5 hours and not taking lunch breaks and waiting till odd hours for patients is sadly not fair.”[7]Ms Brown responded: “Sorry to hear you are working after 5 pm. Just to make it clear, myself and Flavia have stated on previous occasions that you should not feel obliged to work after / over your contracted hours. If a patient turns up after you have finished work, the expectation is that you tell the patient you are now closed and they should come back during opening hours.”[8]That then was the position in January 2024. Another email from Ms Brown at page 137 states: “Sorry you have stayed late however, I have on a number of occasions made it clear that there is no expectation to work beyond your working hours. This has been explicitly stated by myself (and Flavia in the past). 2 of 8[9]There are other emails to the same effect with Ms Woodruffe saying she was having to work late and her managers saying not to do so.[10]In short, the respondent says that there is no basis in the contract for the wages claim and it ought to be struck out. The claimant's position[11]The claimant’s position can best be understood by reference to the Further Amended ET1 which states:[17]The Claimant’s job description and the role as represented at recruitment referred to a 37.5-hour full-time post, whereas the written contract recorded 35.5 hours per week.[18]Throughout the period December 2022 to December 2024, and continuing thereafter until at least March 2025, the Claimant worked substantial amounts of overtime.[19]The overtime arose because: a) patient appointments frequently ran beyond clinic hours b) clinical photographs and associated records required completion after patient appointments finished c) operational service requirements required patients to be photographed even when clinics overran d) the defective workstation significantly increased the time required to process images[20]The Claimant maintained records of the hours worked including contemporaneous notes and time calculations, which demonstrate approximately 629 hours of additional work during the period to December 2024, with the total later estimated to exceed 900 hours.[21]Management were aware that the Claimant was regularly working beyond her contracted hours.[22]On 25 April 2024 the Claimant raised the overtime issue with management during a meeting which also addressed the ongoing ICT problems.[23]Despite this, the Claimant was not paid for the overtime worked. ….[27]The Claimant’s entitlement to payment arises from:(a) an implied term that the Claimant would be remunerated for work required and performed; and/or 3 of 8(b) the principle that where work is required by the employer and undertaken for the employer’s benefit, payment is due.[28]The overtime worked was not voluntary but arose from operational necessity. The workload could not reasonably be completed within contracted hours due to sustained demand and system limitations.[29]Insofar as some additional hours fell between the Claimant’s contractual hours and the full-time standard hours, the Claimant contends those hours were still payable at least at plain time as wages for work required and performed, even if not attracting an overtime premium.[30]The Claimant’s case is that the Respondent required, permitted, accepted and benefited from additional hours worked in the ordinary course of the role; those hours constituted “wages” within s.27 ERA either as payable additional hours / plain-time additional hours / authorised TOIL-or-payment hours under the Respondent’s arrangements, but in any event were not gratuitous. 12. Mr Middleton, for the claimant, submitted that although managers were telling her not to work, the fact was that they knew she was working extra hours and were content for that situation to continue. They didn’t do anything to address that issue, such as by reducing her workload. 13. Further, section 13(3) Employment Rights Act 1996 provides that: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), The amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.” [Emphasis added] 14. He submitted that in these circumstances, overtime was properly payable. 15. He also emphasised that this was a substantial claim, for over 900 hours, and was, he submitted, fact sensitive. 16. Some legal cases were relied on, which did not relate directly to a claim of unlawful deduction from wages. The first was Peninsula Business Services Ltd v Sweeney 2004 IRLR 49, EAT. In that case a sales executive’s written contract provided that, on leaving employment, he lost any right to commission in the pipeline. The Employment Appeal Tribunal upheld this term on the basis that, although it might be onerous, the language was clear and the employee had signed the contract to indicate his consent. 4 of 8 17. Anticipating my conclusions slightly, that appears to be an uncontroversial decision and it was not clear to me how that advanced the claimant’s case. 18. Further, Iin Coletta v Bath Hill Court Ltd [2018] ICR 1734 EAT the claimant was one of two Head Porters for a block of residential flats. When he was on shift, he had to stay on site overnight (in the flat where he lived) to provide emergency cover. The Employment Tribunal found that this “on call” duty constituted salaried hours work for the purposes of regulation 4 of the National Minimum Wage Regulations. 19. Again, it is not clear how that applies to this case since Mr Coletta was contractually required to be at work during those hours. 20. The last case relied on was Selectron Scotland Ltd v Roper [2004] IRLR 4. The issue there was whether employees were entitled to the benefit of their original contractual redundancy policy given, as the respondent argued, that a new and less favourable policy had been accepted by them on the basis that they had continued in employment. Mr Justice Elias held that the question was whether “the employees conduct, by continuing to work, [was] only referable to his having accepted the new terms imposed by the employer.” 21. Hence, it was about the circumstances in which a written change of contract by the employer can be taken to have been accepted on the basis of the employee’s behaviour. Here there was no written change of contract and so the circumstances are not at all similar. Consideration 22. Rule 38 of the Employment Tribunal Rules of Procedure provides that:(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it … has no reasonable prospect of success; 23. In Balls v Downham Market High School and College 2011 IRLR 217, EAT, Lady Smith said that the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success. That includes, for example, material on the employment tribunal file. There may be correspondence or other documentation which contains material that is relevant to the issue or which assists in determining whether it is fair to strike out the claim. 24. In Cox v Adecco [2021] ICR 1307, the Employment Appeal Tribunal (HHJ Tayler) reviewed the authorities in this area and distilled the principles governing the approach to strike-out applications as follows: 5 of 8 (1) No one gains by truly hopeless cases being pursued to a hearing.(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate.(3) If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate.(4) The claimant’s case must ordinarily be taken at its highest.(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim.(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing.(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer.(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances. 25. I have set this out at some length because I felt it was important to reflect the fact that I had considered not only the pleaded case but the underlying documents. Ms Woodruffe is no longer a litigant in person. She has applied to amend and reamend her claim, as now quoted above, so it has not been put forward with some consideration on her part. She has also set out her position further in a witness statement, which is in her bundle, and which I have had regard to. It is not disputed 6 of 8 that she raised her concerns over excess hours, so there is no difficulty about taking her case at its highest. 26. In that witness statement it is clear that there was never any acknowledgment that she was entitled to overtime, rather the reverse. For example, she states: “24. On 21 August 2023, Ms Brown confirmed in writing that, where I attended work earlier than my contractual start time I could take time off in lieu (TOIL) … 25. “Following [a colleague’s] departure at the end of 2023 Ms Brown’s position became inconsistent. On 19 March 2024 she stated in writing that there was no expectation for me to work beyond my contractual hours and that she had instructed me not to work overtime. 26. At a meeting held on 25 April 2024, with a contemporaneous minutes summary on the same day (pages 239–241), multiple operational issues were formally discussed. Ms Brown acknowledged that workstation problems were contributing to late finishes and missed lunch breaks (pages 246–247, 257). She confirmed that overtime payments would need to be referred to the General Manager, Mr Tyrone Gumbe, and that my overtime spreadsheet would need to be reviewed by him once completed. She also confirmed that she would not prevent overtime pending resolution of the technical issues, marking a change from her earlier position. In the same discussion, she referred to an “agreement” with the former manager (page 254).” 27. There is however, no suggestion in Ms Woodruffe’s case, of an express agreement to pay overtime, only that this ought to be implied in the circumstances. 28. So, taking the claim at its highest, at some stage during 2023 there was discussion about TOIL as an alternative to overtime. Clearly her managers were concerned about the hours she was working. It does not follow, however, that her entitlement to TOIL every translated into an entitlement to overtime payments. The position throughout was that approval was needed from her managers for any overtime to be worked and paid. 29. Arguably, the last paragraph quoted may suggest that her overtime spreadsheet might be reviewed by Mr Gumbe retrospectively, but approval would still have needed. That requirement cannot simply be waived away by Ms Woodruffe herself. The fact is that to be “properly payable” overtime had to be authorised. 30. The leading case on the scope of what is wages is the decision of the House of Lords in Delaney v Staples [1992] IRLR 191. Lord Browne-Wilkinson emphasised the need to keep the “normal meaning” of wages in mind when considering the definition. He said: 7 of 8 “… the essential characteristic of wages is that they are consideration for work done or to be done under a contract of employment. If a payment is not referable to an obligation on the employee under a subsisting contract of employment to render his services it does not in my judgment fall within the ordinary meaning of the word “wages”
Consideration
[31]Hence, there has to be an obligation to perform the work in question. Otherwise, it is not wages and so not properly payable. I was not referred to (and have been unable to locate) any decided case where a worker has succeeded in such circumstances, and if there were, it would suggest that a worker could increase their wages simply by working extra hours.[32]These are not flexible or uncertain principles, they are well-established, concrete pillars of the jurisdiction for wage claims. I can only conclude that this complaint has no reasonable prospects of success. In fact there can be no possible benefit to the claimant in allowing it to proceed any further, and it is struck out.