• In 1986, the work rosters of Spence and his colleagues were reorganised so
that their contractual working hours were 39 hours a week with six hours’
overtime made available. Spence claimed the council had a duty to provide the
overtime but the tribunal dismissed the claim because overtime only counted
towards "normal working hours" if it was obligatory on both sides.
The EAT dismissed Spence’s appeal. It categorised overtime into three types
– contractual overtime which had to be worked if it was made available,
voluntary overtime and guaranteed overtime, which the employer had a duty to
provide and which the employee was contractually obliged to work.
Spence’s overtime came within the first category. The council was not under
any contractual obligation, whether express or implied, to guarantee six hours’
overtime and it had specifically retained flexibility to alter its working
arrangements when necessary.
Can COT 3 agreements dispose of all claims?
Naeem v Bank of Credit and Commerce International SA, unreported, April
2000, Court of Appeal
• Employees made redundant by BCCI in 1990 received redundancy payments and
signed COT 3 agreements in full and final settlement of all claims.
Following BCCI’s insolvency in 1991, the House of Lords held in Malik that
BCCI’s conduct was a breach of the implied term of trust and confidence and it
could be liable for "stigma" damages if former employees could prove
they were disadvantaged in finding alternative employment because of their
employment with BCCI.
This excluded employees who had signed COT3 agreements, however, because
those agreements had compromised all claims including stigma claims
irrespective of whether or not the employees were aware of them.
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Naeem successfully appealed to the Court of Appeal. It held that the
employees were unaware of the facts relevant to bringing a stigma claim, namely
the dishonest way BCCI had conducted its business.
As a matter of equity, the court said it was "unconscionable" for
BCCI to take advantage of the employees’ ignorance and so the COT3 agreements
were not effective in preventing any stigma claims.
