In Lloyd v Elmhurst School Limited [2022] EAT 169, the EAT considered whether a term-time salaried hours learning support assistant was entitled to receive the national minimum wage for unworked basic hours falling outside school terms.
Ms Lloyd worked as a learning support assistant, she was paid a salary in equal monthly instalments and she worked three days a week during school terms. According to her contract of employment, she was entitled to the “usual school holidays” as “holiday with pay”.
Ms Lloyd only worked during the school terms despite her contract anticipating some work outside of her normal hours and the school terms.
A claim was made by the employee for an unlawful deduction from wages – she claimed she had not been paid the national minimum wage.
An Employment Tribunal dismissed her claim holding that her basic hours for the purpose of regulation 21(3) of the National Minimum Wage Regulations 2015 (NMW Regulations) were based on 21 hours over 40 weeks, comprising the 36 weeks she worked during school terms and her leave entitlement of four weeks under the Working Time Directive. It considered that the additional 12 weeks’ contractual holiday did not form part of her basic hours.
Ms Lloyd lodged an appeal.
The EAT held the decision of the Employment Tribunal was incorrect and it had looked at the hours Ms Lloyd had worked rather than focusing on what was in the contract of employment. The tribunal had failed to answer the statutory question under regulation 21(3) because it had wrongly focused on whether Ms Lloyd was working outside school terms or not.
The EAT found that a salaried hours worker’s basic hours do not depend on the hours which the worker actually works; basic hours can include periods of absence for which contractual salary is due (even if they are not absences from a period when a worker would otherwise be working).
Full judgement: Click HERE
James Williams
