Lloyd v Elmhurst School [2022] EAT 169

Appeal concerning the calculation of the national minimum wage where the claimant, a school support assistant, worked part-time but was contracted to be paid during school holidays.

The claimant was paid her salary in equal monthly instalments. She worked three days (or 21 hours) a week during term time and, according to her contract, was entitled to the usual school holidays as holidays with pay. She brought a claim for unlawful deduction from wages, arguing she had been paid below the level of the national minimum wage. It was accepted that the claimant was engaged in “salaried hours work” for the purpose of the National Minimum Wage Regulations 2015. The tribunal dismissed her complaint, as her “basic hours” for NMW purposes were based on 21 hours over 40 weeks - the 36 weeks she worked in term time and her four weeks’ leave due under the Working Time Regulations 1998.

The EAT allowed the appeal as the claimant’s “basic hours” derived from her contract and could include hours which were not working hours. Where a worker is contractually entitled to receive their normal salary for a period of absence, such as contractual holidays, the periods of absence from work can count towards the “basic hours” of salaried hours work even if they are not absences from a period when a worker would otherwise be working. The tribunal had erred in focusing on the weeks worked and not looking at the claimant’s contract.


Published: 30/03/2023 10:03

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