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The National Minimum Wage

View profile for Reggie Lloyd
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In July, the gov.uk website stated that a record 22,400 workers would receive millions in back pay.

Employers who pay workers less than NMW must pay back arrears of wages to the worker at current minimum wage rates and face financial penalties of up to 200% of arrears, capped at £20,000 per worker.

Some 239 employers underpaid 22,400 workers by £1.44 million and received fines of a record £1.97 million. The main reasons for underpayment included deductions for uniforms, not paying travel time, miscalculation of time periods worked, abusing the accommodation offset and underpaying apprentices.

After five years, the NMW enforcement scheme has identified that about 90,000 workers were not paid the NMW and were owed over £10 million in back pay, and imposed fines of about £8.5 million on almost 2,000 employers. Funding for NMW enforcement has doubled since 2015 and the government says it will spend over £26 million in 2018/19.

This illustrates that employers must make sure they pay the NMW.

Over the years there has been much debate over whether a person who is “on call” but allowed to sleep is entitled to be paid the NMW for the whole shift or for just the time they are awake and performing work.

A clear decision was made by the Court of Appeal in the case of Mencap and Tomlinson-Blake. Workers “sleeping in” will only be entitled to the NMW when they are required to be awake and are awake for the purpose of performing their duties.

A number of cases were considered and it concluded that where the worker is contractually obliged to spend the night at or near their workplace, on the basis that they are expected to sleep for all/most of the period but may be woken to undertake some specific task, they will only be entitled to the NMW when awake. This decision will be welcomed by employers.

I am based at our Colchester office and can be reached on 01206 217347 or reggie.lloyd@birkettlong.co.uk.

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