by Martin Williams, Mayo Wynne Baxter

In October 2011 the national minimum wage for qualifying workers aged 21 years and over rose to £6.08.

There are, in fact seven different minimum wages including the £3.68 for workers aged between 16 and 18 who are not apprenticed and the £3.57 set for agricultural apprentices.

Whilst the adherence to a set minimum wage may appear one of the simplest parts of employment legislation a recent appeal demonstrates this is not always the case.

In Wray v JW Lees & Co, a temporary manager at the White Hart pub, Ms Wray, was required to sleep in free accommodation in the pub overnight as part of her contract. When later made redundant Ms Wray made two claims – for unfair dismissal and for failure to pay the minimum wage. The second claim was an unusual one that went on to test the law at the Employment Appeal Tribunal (EAT).

Ms Wray received gross pay of £325 per week at the White Hart. Her employer argued that:

• She worked 42½ hours per week when the pub was open. This equated to an hourly rate of £7.65. This was comfortably above the minimum wage, which had been £5.73 at the time.

Ms Wray, however, claimed that:

• When calculating the hourly rate, several other things should be considered, including:

a)      All the extra time she spent working in the pub outside opening hours.

b)     Plus the hours when she had to be there overnight.

The original tribunal found Ms Wray worked an extra 14 hours a week when the pub was closed – making a total of 56½ hours. On the basis of a weekly wage of £325 that would produce an hourly rate of just over £5.75, two pence above the minimum wage at that time. The final decision was therefore down to how the tribunal viewed the requirement to sleep in the pub overnight.

The National Minimum Wage Regulations 1999 fail to define what specifically constitutes “work”. Instead the tribunal looked to the definition included in the Working Time Regulations (WTR). On consideration, the later appeal ruled that this was an incorrect approach as the WTR have no relevance to the minimum wage. The issue should have been determined exclusively by reference to the relevant provisions of the National Minimum Wage Regulations.

The EAT dismissed the appeal. It was judged that whilst Ms Wray was required to sleep in the pub, she was not actually required to work. This was reinforced by the fact that she was allowed to leave the property whenever she wished during the night, and the only necessity was that she slept there. As such she could not, for example, be compared to an overnight security guard who has to work overnight.