In the case of Lloyd v Elmhurst School Limited the Employment Appeal Tribunal considered an appeal against a decision of the employment tribunal dismissing a claim for unlawful deduction from wages. The claimant was a part-time learning support assistant at a school and was paid a salary in equal monthly instalments. She worked three days (or 21 hours) a week during term time and was contractually entitled to school holidays with pay.
She brought a claim for unlawful deduction from wages, contending that she had been paid below the level of the national minimum wage and that the school’s decision to count the pay reference period as only 40 weeks (the 36 weeks the claimant worked and four weeks annual leave), rather than the 52 weeks in the year, was unlawful.
The tribunal dismissed her complaint, holding that her ‘basic hours’ for the purpose of regulation 21(3) National Minimum Wage Regulations 2015 were based on 21 hours over 40 weeks, comprised of (a) the 36 weeks she worked in term time and (b) her four weeks’ leave due under the Working Time Regulations 1998.
The EAT allowed the appeal, holding that the claimant’s ‘basic hours’ for the purpose of regulation 21(3) were to be ascertained from her contract and could include hours that were not working hours. Where a worker is contractually entitled to receive his or her normal salary for a period of absence, such as contractual holiday, the periods of absence from work could count towards the ‘basic hours’ of salaried hours work even if they were not absences from a period when a worker would otherwise be working. The tribunal had erred in focusing on the weeks the claimant in fact worked, to which it had added her statutory entitlement to paid annual leave, rather than ascertaining the claimant’s basic hours from her contract alone.
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