Download Our Employment Rights Act Resource Pack
Download our Employment Rights Act Resource Pack to navigate key 2025–2027 employment law changes with expert guidance and practical tools.
Read more
According to the Employment Appeal Tribunal (EAT) in the case of Lloyd -v- Elmhurst School Limited [2022] EAT 169, yes it should.
28 February 2023
Case Study
The claimant was employed as a part-time learning support assistant who worked 21 hours per week during term time and was entitled to the usual 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 (NMW).
The case hinged on whether the claimant’s ‘basic hours’ included the school holidays and therefore should be calculated over 52 weeks. If they did, it would mean that she would have been paid less than the NMW. The respondent argued that that the claimant’s basic hours were based on 40 weeks, constituting 36 weeks’ term-time working and four weeks’ statutory leave.
Case Study
Initially, the Employment Tribunal hearing the case agreed with the respondent, finding that, “the Tribunal needs to determine what the claimant’s basic hours are and it is clear that she is not working during the 12 weeks’ leave.” As such, the Tribunal decided that the claimant’s basic hours were 21 hours per week over 40 weeks.
The claimant appealed to the EAT, who found that the Employment Tribunal had conflated ‘basic hours’ with ‘basic working hours’.
Regulation 21(3) The National Minimum Wage Regulations 2015 stipulates that a Tribunal should identify the hours for which the claimant is entitled under their contract to be paid their salary. Although the respondent accepted that ‘basic hours’ could include ‘non-working hours’, they contended that this only included, “days when the worker would otherwise be working”.
The EAT disagreed, stating that the regulation, “simply looks to whether there is entitlement to be paid in respect of a number of hours in a year ascertainable from the contract. It does not focus on the quality of those hours…”
The EAT pointed out that regulation 27 expressly refers to time “when the worker would otherwise be working” in the context of travel and training. Regulation 21(3) could have used the same wording had it intended to exclude hours that the employee would not otherwise be working from the assessment of basic salaried hours under the contract of employment.
As the claimant’s contract of employment stated that she would be, “entitled to the usual school holidays as holidays with pay”, the EAT decided that the Employment Tribunal had incorrectly determined the claimant’s basic hours and remitted the case to a differently constituted Employment Tribunal.
This case highlights that in assessing an employee’s basic salaried hours for the purposes of calculating the NMW, Tribunals are required to place significant weight on the wording of the contract of employment. If a school, having engaged a term-time only employee, intends to exclude school holidays from the NMW calculation, they will need to ensure that the wording of the contract of employment does not include normal pay during the school holidays.
With the NMW rates set to increase on 01 April 2023, our team of solicitors can support schools in assessing what should be included in calculations for the NMW and how the contract of employment should be drafted to achieve the desired result.
Contact Us
If you require any further information on anything included in this case study, or any employment issue you may be facing, please do not hesitate to contact the Employment team on 01332 226 155 or fill in the form below.
Related Services
Knowledge
Download our Employment Rights Act Resource Pack to navigate key 2025–2027 employment law changes with expert guidance and practical tools.
Read morePractical checklist to help landlords and property managers comply with the Renters’ Rights Act 2025 and new tenancy regulations.
Read moreA clear roadmap from our Employment & HR Law team on upcoming Employment Rights Bill changes employers need to prepare for.
Read moreFigures around employee pay and entitlements are a minefield for HR professionals, constantly changing and evolving.
Read moreTribunal's consideration of linked discrimination acts, extending time limit for claims, in Allen -v- Worcestershire Health Trust.
Read MoreEAT upheld dismissal decision of a Christian actress playing a lesbian character after her belief that homosexuality was sinful became public
Read MoreGarcha-Singh -v- British Airways plc, highlights the complexities involved in a dismissal case centred round medical incapacity
Read MoreA recent Employment Appeal Tribunal case, Higgs -v- Farmor's School, sheds light on the considerations of tribunals when assessing discrimination claims.
Read MoreThe challenges faced by employers when managing conflicting beliefs among employees.
Read MoreWhere can the time limit be extended for bringing a discrimination claim against an employer?
Read MoreTribunal case provides guidance for undertaking a reasonable (and fair) disciplinary investigation
Read MoreThe Employment Appeal Tribunal recently decided whether or not a teacher's claim rightly qualified as whistleblowing.
Read MoreScroll to next section
Scroll back to the top
On Monday 29 September, Flint Bishop successfully completed the acquisition of the entire business of Lupton Fawcett LLP. You have been forwarded to the page most relevant to your visit.
Please feel free to explore our website and learn more about our legal services and professionals, including those who have recently joined us from Lupton Fawcett.