Basic hours

A recent case is a further reminder of how complex the area of calculating hours, salary and holiday pay is becoming for employees who do not work regular hours.

In the recent case, the claimant was employed as a part-time learning support assistant at the respondent school and was paid a 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, contending that she had been paid at below the level of the National Minimum Wage (NMW).

The original Employment Tribunal dismissed her claim but she succeeded on appeal. It held that the claimant's 'basic hours' for the purposes of calculating her NMW entitlement were to be ascertained from her contract and could include hours which 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 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 case reminds employers that their employment contracts must be carefully drafted or reviewed. It reminds employees of the importance of having an employment contract reviewed prior to signing it. In both cases, advice from a qualified professional could save time and money in the long run.

To discuss this or any other employment matter, contact us.