From 1st October 2011 the new national minimum wage for qualifying workers aged 21 years and over will rise from £5.93 to £6.08.
Many people may not be aware of the numerous exceptions to this standard but there are in fact seven different figures for minimum wages ranging from the rate for “young” workers (i.e. workers above compulsory school age but under 18 and not apprenticed, currently £3.64 but rising by 4p in October), to that for agricultural apprentices in England and Wales (currently £3.57).
Whilst this may appear one of the simpler parts of employment legislation (i.e. you pay someone at least the minimum rate for the hours that they work and job done), a recent case heard by the Employment Appeal Tribunal (EAT) demonstrates that this area of law can test the most learned brains of our great judiciary.
In Wray v JW Lees & Co, Ms Wray, a temporary pub manager at the White Hart pub, was provided with free accommodation on the pub premises as part of her contract, and was required to sleep in that accommodation overnight. When she was subsequently made redundant, Ms Wray made two claims to the Employment Tribunal – firstly for unfair dismissal, and secondly for a failure to pay the minimum wage. It is this second part of her claim that is of interest here.
Ms Wray was paid a gross amount of £325 per week during the period that she was at the White Hart. It was her employer’s case that:
- she worked 42½ hours per week, being the actual hours that the pub was open. This equated to an hourly rate of £7.65 which was comfortably above the minimum wage, which was £5.73 from 1 October 2008.
Ms Wray, however, claimed that:
- when calculating the hourly rate, several things should be taken into consideration, including:
a) the numerous extra hours which she said that she spent working outside the actual opening hours of the pub; plus
b) the hours when she was required to be at the pub overnight.
The Tribunal found that Ms Wray worked a further 14 hours a week over and above the hours that the pub was open – that is, a total of 56½ hours. On the basis of a weekly wage of £325 that would produce an hourly rate of just over £5.75 – just above the minimum wage at that time. The decision was therefore down to the time spent at the pub overnight.
There is no definition in the National Minimum Wage Act of what specifically constitutes “work”. The Tribunal had, therefore, looked to the definition provided by the Working Time Regulations (WTR) in order to make their decision. On consideration, the EAT ruled that this was an incorrect approach as the WTR have no relevance to the minimum wage. The issue should have been determined exclusively by reference to the relevant provisions of the National Minimum Wage Regulations 1999.
The EAT dismissed the appeal by Ms Wray. It was their view that whilst Ms Wray was required to sleep at the premises, she was not required to actually do any work during that time and could not, for example, be compared to an overnight security guard. She was freely allowed to leave the premises during the course of the evening or night, and the only requirement was that she slept there.
