How is N.M.W calculated when you do a mixture of Salaried and Time Work (Sleep-ins)?

Danfuss

The court system operates on the basis of hierarchy. The higher court’s decisions bind all those courts beneath them in the hierarchy - they have to follow that decision unless the case can be distinguished on its particular facts.

The Employment Tribunal is the lowest court in the ET system and as such its decisions do not have to be followed by any other court in the Tribunal system. The decisions reached in cases heard by the Employment Appeal Tribunal (EAT), on the other hand, do have to be followed by lower ETs.

As I read it from the cases, it would appear that the two elements of the employment contract i.e. the salaried monthly pay and the night shift premium paid must each separately meet the NMW regulations.

In order to answer the question as to whether the hourly rate paid meets the NMW you should not divide the total pay received by the total salaried hours plus the night shift hours time worked in the relevant period. Instead, each element should be treated separately. An 8 hour night shift receiving a flat rate premium of £40.00 is obviously below the adult NMW but the monthly salary paying above the NMW may bring the average hourly rate paid to the employee to or above the NMW.

That’s how I understand it. Are you in a union? If so I am sure that they would be able to help with this.

Tunstallstoven

Hi Danfuss

Thank you so much for the helpful response. How you explain the court systems makes total sense and is very useful as I was unaware of it previously.

The remainder makes sense to, apart from one thing:

Danfuss wrote: »

[1] it would appear that the two elements of the employment contract i.e. the salaried monthly pay and the night shift premium paid must each separately meet the NMW regulations..... [2] you should not divide the total pay received by the total salaried hours plus the night shift hours time worked in the relevant period. Instead, each element should be treated separately...... [3] the monthly salary paying above the NMW may bring the average hourly rate paid to the employee to or above the NMW.

If an "average" is not to be worked out as stated in points 1 and 2, how is the "average" which point 3 refers to calculated?

I'm not in a union, but have been getting advice from ACAS and I saw a solicitor for a free 15 minute consultation. But none of that led me to a clear understanding of how the salaried pay and time pay combined are treated with regards NMW. Nor have I been able to find out where I can find this out from, or whether it is something which is covered by a law or some kind of official regulation. It all seems so grey....

Thanks again for the help.

Danfuss

The point is that they should not be combined to test whether the NMW is being paid for each element.

Point 3 was just used to illustrate how the underpayment could be disguised if the hourly rate was taken as an average of both the salaried element and the night shift element combined.

Why do you think that you are not being paid according to the NMW regulations?

Tunstallstoven

For the sleep ins I do I am paid just over £30. They last for 9 hours. So per hour they are well below NMW. And if this part of my wage should be treated separately from my salaried wage, my employer is not meeting the NMW requirements.

Cheers

Tunstallstoven

Quick bump in case anyone has any further reflections or information concerning the matter of how the NMW would be calculated for a combination of Salaried and Time work (see mine and Danfuss's exchanges above for background).

Also, if anyone more familiar with case law/law in general would be able to help me find somewhere I can read about the "Ms Kirugo V Turning Point Watford Employment Tribunal September 2009" case, that would be fantastic. Even better would be a link to the case law/Tribunal hearing itself. Whilst I take on board what Danfuss has written above with regard to the ET being the lowest court, if a decision was made at that court which has never subsequently been made at a higher court, would it not therefore hold relevance and validity?

Many thanks

Danfuss

The short answer is that you are unlikely to find a full report of the case. Transcripts of evidence are not normally taken in Employment Tribunal cases.

The actual decision of the Tribunal is not published other than to the parties involved in the case after which of course it can be made public (i.e. shared with others) but not in the sense of becoming a formal public record in the same way that Employment Appeal Tribunal (EAT) decisions are recorded and published.

What is unclear is why, when you have been sign-posted to other, and importantly, later EAT cases on the subject, you are still focusing on the six-year old lower tribunal case?

You state that you are a salaried employee who is also required to do ‘sleep-ins’ as part of your employment contract.

For the ‘sleep-in’ element of your work you are paid a flat rate payment of £30.00 for a nine hour shift or £3.33 per hour.

According to you, these ‘sleep-in’ shifts meet the criteria of ‘Time Worked’. It follows that you are being paid below the NMW for these hours.

You appear to have answered your own question.

Tunstallstoven

Many thanks for that helpful explanation; it really clears things up. And now I know why I couldn't find any details about the case!

As for the remainder of your post, I thought I had explained why I was focussing on the Kirugo case. To quote myself:

Seagull27 wrote: »

I specifically wanted to read more on the Kirugo case because that is the one Unite refer to with regard how NMW is calculated when salaried AND time work is undertaken. I'm not sure about Whittlestone, but in the Slavikovska case I don't think the matter was relevant....

Many thanks

Nebulous2

This is driving on inexorably to a point where sleepovers will all have to be paid at NMW or the person's normal hourly rate. I don't know where the law is currently at, but I was previously a senior manager for a care organisation and was involved in working my way through the implications of this.

Although sleepovers were written into people's contracts we gave a great degree of latitude. Some people lived nearby and didn't want to work them. Others lived further away and didn't want to travel, or used public transport and preferred sleepovers to going home. We let people swap, so in practice some people did a lot and other people rarely did any.

We then received legal advice on averaging hours to ensure that averaging did not bring people below NMW. We averaged them over a 17 week period, as for working time directive.

We limited the amount people could do depending on salary, usually to 4 a month. This meant that some people had to work more who didn't want to and other people who would have preferred to do a sleepover had to go home late at night or return to work early in the morning, when they wouldn't have wanted to.

Our contingency position was that if we had to pay them at an hourly rate we would stop them and replace them with waking night staff. They could clean, prepare food and keep care files up-to-date overnight, which would have helped reduce pressure on staff during the day. That is what our local council did, years ago when this first arose, moved entirely to waking nights.

The main problem is that there just isn't enough money in care, particularly social care. At the same time there is an increase in the number of people needing care and pressure to move to smaller, more personalised services, instead of large care homes.

I worked for a registered charity, which put as much money as we could into staff wages and conditions. We took a decision to pay everyone the living wage, rather than the minimum wage for instance. We continued to pay sick pay, where many of our competitors had really stripped it back.

So money for paying an hourly rate overnight doesn't appear out of thin air. It has to come from somewhere and will impact on other areas of pay. Regardless of that it will almost certainly happen and organisations will have to cope and adapt to it.