Hamilton House Medical Ltd v Hillier EAT/0246/09

national minimum wage | basic rate of pay | night work

The Employment Appeal Tribunal (EAT) has held that the national minimum wage relates to a worker's basic rate of pay, even if he or she normally works only at night at an enhanced rate.

Mrs Hillier was a care assistant who worked for Hamilton House Medical Ltd. She had for some time done only night work, which was paid at time and one-third from Monday to Friday and time and two-thirds on Saturdays and Sundays. Her basic hourly rate of pay under her original contract of employment was £4.3829, while her payslips for the years 2000 to 2002 showed a basic hourly rate of £4.8581, together with enhanced rates for weekday nights and weekend nights. Hrs Hillier was paid £5.01 per hour when she occasionally attended daytime training. By February 2008, Mrs Hillier was in fact paid £6.67 per hour for working during weekday nights, something that the employer queried with her in a letter in which it said that she should have been paid £6.477 for night working on Monday to Friday and £8.0969 for night working on Saturday and Sunday.

An employment tribunal found that, for the relevant period of 2005 to 2008, the employer was in breach of the National Minimum Wage Regulations 1999 (SI 1999/584). Mrs Hillier's basic rate of pay (on which the enhanced rate was based) was £5.01 per hour in relation to weekday nights and £4.8581 per hour in relation to weekend nights. This was less than the minimum rate that applied at the time. The employment tribunal rejected the employer's contention that her basic rate of pay was £6.67. Mrs Hillier's night rate could not be considered the final figure for national minimum wage purposes.

The EAT agreed. If the employer was correct, a worker's pay entitlement in any pay reference period would change depending on whether she actually worked during the day for even an hour or worked entirely on nights and weekends, which would be a surprising result and would introduce inconsistency into the minimum wage calculation. The philosophy of the National Minimum Wage Regulations 1999 is that a worker's basic minimum wage before overtime enhancement or other allowances should not fall below the statutory minimum and it would be completely contrary to the purpose of the legislation if that obligation could be avoided simply because a worker chooses to work those hours when she would be in receipt of some enhancement. The relevant amount is the lowest payable during the reference period, which must be the minimum sum due under the contract of employment.

Case transcript of Hamilton House Medical Ltd v Hillier (Microsoft Word format, 52K) (on the EAT website)

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