The National Minimum Wage Regulations 1999

A detailed examination of the Regulations that implement the national minimum wage.

"The Regulations will inevitably be complex in some places because they need to cover the great variety of working and pay arrangements ... [but] for the great majority of businesses and workers who operate on the basis of regular work patterns, with regular pay, the Regulations represent a straightforward approach, in line with the definition of pay and working hours recommended by the Low Pay Commission in its report published last June."

(per Mr Ian McCartney, Minister of State, Department of Trade and Industry, 3.3.99, Hansard (HC) Sixth Standing Committee on Delegated Legislation, col. 8)

The National Minimum Wage Act 1998 ("the Act") provides the framework of powers to establish a national minimum wage in the United Kingdom ("the NMW"). The National Minimum Wage Regulations 19991 ("the Regulations"), which came into force on 1 April 1999 along with the provisions of the Act that were not already in force2, use some of those powers to put the detailed technical arrangements in place. A comprehensive guide to the Act, which this article is intended to supplement, appeared in National Minimum Wage Act 1998. Like the Act, the Regulations extend to Northern Ireland as well as Great Britain.

The Regulations were published in draft form for public consultation on 11 September 1998. The deadline for responding to the Government's proposals expired on 6 November, and a number of significant amendments were subsequently made (see the box below) before a revised draft of the Regulations was laid before Parliament on 16 February for its approval. In their final form, approved by Parliament on 4 March, the Regulations:

  • specify some of those who need not get the NMW (see below);

  • set the rate of the NMW (see below);

  • stipulate the period over which the NMW on average must be paid for time worked (see below);

  • define what counts and does not count as working time for which the NMW is payable (see below );

  • prescribe what counts and does not count towards pay for the purposes of the NMW (see below );

  • set out the method of calculating whether or not a worker's pay is in line with the rate of the NMW (see below ); and

  • require employers to keep "sufficient" records in relation to the NMW (see below).

    Guidance and leaflets

    Where appropriate, we refer in this article to numbered paragraphs of a 112-page booklet3, issued by the Department of Trade and Industry ("the DTI") on 5 March, which provides guidance on workers' rights and employers' obligations under the Act and the Regulations ("the Guidance"). Its stated aim is to help employers ensure that they pay their workers at least the NMW, and to help workers establish that they are getting what they are entitled to. According to the DTI, it asked businesses what they wanted to see in the Guidance and aimed to reproduce that4. It will be working with charities and religious groups to produce special guidance about how they should implement the NMW5.

    The information contained in the Guidance "gives only general guidance and should not be regarded or relied upon as a complete and authoritative statement of the law"; and the worked examples and boxed information "are for illustrative purposes only and should not be regarded as definitive". The Guidance is also aptly described as "a technical manual designed for those with a special or professional interest in how the rules work".

    However, the DTI has also published shorter and simpler leaflets6, for employers and for workers, to which the same disclaimer applies. These briefly explain what the NMW is, whom it affects, what counts as pay and hours, what employers' legal obligations are and how workers can make sure they get the NMW.

    Publicity and helplines

    The DTI has a duty under the Act to publicise the NMW (see National Minimum Wage Act 1998), pursuant to which it has spent £4.8 million on a national advertising campaign. It is also developing a package of literature, including CD-ROMs and case studies, and holding workshops and seminars that are aimed especially at small businesses in low-paying sectors7. Booklets are being produced to meet the needs of the hairdressing, hospitality, social care, clothing, contract services (cleaning and security) and retail sectors.

    The DTI has also set up a confidential helpline to answer enquiries about the NMW. The number of the helpline, which is open seven days a week, is 0845 6000 678 (local call rates apply). Alternatively, enquirers can write to NMW Enquiries, Freepost PHQ1, Newcastle upon Tyne NE98 1ZH. Those seeking assistance on the agricultural minimum wage (see National Minimum Wage Act 1998 and paras. 208-211 of the Guidance) should call the agricultural wages helpline for the relevant part of the United Kingdom. The numbers are 0845 0000 134 (for England and Wales), 0131 244 6397 (for Scotland) and 01232 520838 (for Northern Ireland).

    Workers claiming to be paid less than the NMW may, instead of bringing a case before an employment tribunal or a civil court (see National Minimum Wage Act 1998), get the enforcement agency to follow up their complaint by calling the helpline number. The Inland Revenue will enforce the NMW (see National Minimum Wage Act 1998 and also paras. 228-241) by responding to such complaints and targeting inspections on those sectors where underpayments are likely to occur8. The Chancellor of the Exchequer, Gordon Brown, said on 31 March that £13 million would be made available over three years to enforce the NMW, administered by a staff of 125 including 63 inspectors9.

    EXCLUSIONS FROM NMW

    The Regulations expressly exclude from the NMW the following10:

  • workers below the age of 1811 (reg. 12(1));

  • those working under a contract of apprenticeship (see para. 26) or taking part in the Government's Modern Apprenticeships scheme (see paras. 27-29) who are aged 18 or who are 19 or older but younger than 26 and in the first 12 months of their apprenticeship (reg. 12(2)-(4) and paras. 22-25);

  • participants in schemes that receive funding from the European Social Fund, or those on government-funded training, work experience or temporary work schemes or schemes to help the unemployed find or get work12, who are not employed by the employer for whom they work under the scheme13 (reg. 12(5)-(7) and paras. 30 and 32);

  • undergraduates on sandwich courses while they are placed with an employer for up to one year, and trainee teachers while they are placed with schools or colleges, again for no longer than a year, as part of their course (reg. 12(8) and (9) and paras. 33-36);

  • people who are homeless or living in a hostel for homeless persons, receiving or entitled to income support or income-based job seekers' allowance, and taking part in a charitable or not-for-profit scheme under which they are provided with shelter and other benefits in return for work (reg. 12(10)-(12));

  • au pairs and others such as nannies and companions who are treated as a member of their employer's family14, particularly as regards the provision of accommodation and meals (for which they are not liable to pay) and the sharing of tasks and leisure activities, and live in the family home (reg. 2(2)(a) and para. 37); and

  • members of their employer's family15 who live at home and either share in the family's tasks and activities or participate in the running of the family business (reg. 2(2)(b), (3) and (4) and para. 38).

    Friends and neighbours

    The Guidance also says that the NMW does not need to be paid "when jobs are done under informal arrangements between people". For example, someone who helps out a neighbour by doing the shopping - and who receives a token payment in return - cannot claim the NMW unless there is a binding contract. Similarly, someone who cleans a friend's or neighbour's car on this basis cannot claim the NMW (para. 39).

    RATE OF NMW

    The rate of the NMW for most workers aged 22 and over is £3.60 an hour (reg. 11), but for those in the first six months of a new job with a new employer16 taking part in "accredited training" (see below ) the rate is £3.20 an hour (reg. 13(2)). The rate for 18 to 21-year-olds is £3.00 an hour (reg. 13(1)). Those rates applied to both existing and new workers from 1 April 1999, irrespective of how often or by what system they are paid (para. 50) and regardless of their performance.

    Accredited training

    The Regulations contain an exhaustive definition of "accredited training"17 (see reg. 13(3) and (6) and para. 54), which must be provided under a written agreement between the employer and the worker on at least 26 days during the first six months of employment. It need not be for a full 26 days, however, and it may be at or away from the workplace so long as it is during normal working hours (para. 53). It could also be provided all at the beginning or all at the end of the six months, or it could be spread out throughout the period. But at the end of the six months, the worker must be paid at least the standard rate of the NMW (that is, currently, £3.60 an hour) even if the training continues beyond that period.

    PAY REFERENCE PERIOD

    A worker does not have to be paid the NMW for each hour worked, but he or she must be paid the NMW on average for the time for which the NMW is payable that he or she works in each "pay reference period" (para. 55). That is a calendar month or, if the worker's pay period is shorter than a month, that period (reg. 10(1) and para. 56).

    Payments made by an employer to a worker in any pay reference period include:

  • all payments received by the worker in that period (reg. 30(a));

  • any payments earned by the worker in that period but not received by him or her until the following pay reference period (reg. 30(b) and see paras. 59-62); and

  • if the worker does not get paid until he or she submits a completed timesheet or other similar record to the employer, and he or she submits that less than four working days before the end of the pay reference period following the one in which the work was done, payments made in either the pay reference period in which the completed record was submitted or the one after that (reg. 30(c) and paras. 63-65).

    Any payments "transferred" from the period in which they were received to the period when they were earned cannot also be allocated to the former period. That would be double-counting (para. 58).

    When a worker leaves his or her job, the employer must pay the worker what it owes him or her within a month for that to count towards the worker's pay in his or her final pay reference period (reg. 10(2)).

    WORKING TIME FOR NMW PURPOSES

    The time for which the NMW is payable depends on the type of work that the worker is doing, and the Regulations define four distinct types of work for these purposes. Known as "time work", "salaried hours work", "output work" and "unmeasured work" (which is a residual category), they depend on the way in which a worker is paid for the work that he or she does rather than on his or her job.

    Time work

    Time work is work that is not "salaried hours work" (see below) which is paid for by reference to the time for which a worker works, or according to how much a worker produces in the time when he or she is required to work. It is also work that would be paid for by reference to such a measure of output but for the fact that the worker is paid by reference to the length of time alone when his or her output does not exceed a particular level (reg. 3).

    A worker will be a "time worker" if he or she has set or varying times at which he or she is expected to work, or if he or she does "output work" (see below ) in set hours, but is not on an annual salary (paras. 121-124).

    In addition to time when a worker is actually working, time work includes time when the worker is:

  • available for work at or near a workplace other than his or her home, and is required to be so available (reg. 15(1)), whether or not work is actually provided for that time18 (para. 126);

  • at or away from work during working hours receiving training that has been approved by his or her employer, or travelling19 during working hours between work and the training centre (reg. 19);

  • travelling19 "for the purpose of duties carried out by him" or her in the course of his or her work unless the travelling is "incidental to the duties"20, to the extent that the worker would not otherwise be working during the time (reg. 15(2)(a)), including travelling from one work assignment to the next (para. 127); or

  • awake for the purpose of working during the hours he or she is allowed, by arrangement, to sleep at or near work (reg. 15(1)).

    Time work does not include time when the worker is:

  • available for work at home or otherwise away and far from a place of work;

  • travelling19 between home or temporary lodgings and work (reg. 15(2)(b));

  • absent from work21 (reg. 15(5));

  • entitled to a rest break22 (reg. 15(7)), even if he or she works during part or all of this time23 (para. 132);

  • engaged in industrial action24 (reg. 15(6)); or

  • sleeping at or near work during the hours he or she is allowed, by arrangement, to sleep there (reg. 15(1)).

    Salaried hours work

    Salaried hours work is work for which a worker is contractually entitled to be paid no more than an annual salary (or just that plus a performance bonus) for an ascertainable basic number of minimum hours in a year25, in equal weekly or monthly instalments (or in variable monthly instalments that produce an equal amount in each quarter), regardless of the number of hours the worker actually works in any particular week or month (reg. 4(1), (2) and (6)).

    Variations in the weekly or monthly instalments, or in the amount in each quarter, do not stop the work from being salaried hours work if they result from, for example, (a) a performance bonus, (b) a salary rise (or a salary cut), (c) payments for working longer than the basic hours or (d) the worker's employment beginning or ending during the week or month (reg. 41(4)).

    Salaried hours workers include workers on annualised-hours contracts and term-time workers who work for only part of the year but are paid in instalments all year round. For example, school caretakers, canteen assistants and cleaners are often paid a regular weekly or monthly amount throughout the year, both when they are working during term time and during the school holidays (para. 144).

    The hours worked by a salaried hours worker in a pay reference period are broadly the same as those worked by a time worker (see above), except that salaried hours work includes time when the worker is absent from work (that is, for example, on holiday) if the absence forms part of the basic hours for which the annual salary is payable. Conversely, salaried hours work does not include time when the worker is absent from work and is being paid less than he or she would otherwise be paid or is not being paid at all (as when the worker has been off sick for some time).

    Output work

    Output work is "piecework" (that is, work that is paid for by reference to the amount that the worker produces) or "commission work" (that is, work that is paid for according to the number or value of sales or business that the worker makes or transacts) that is not time work (reg. 5 and paras. 178 and 179). Thus, output workers are pieceworkers or commission workers without set hours, such as homeworkers and fruit or vegetable pickers who are paid at piece rates and door-to-door or travelling salesmen and women (para. 180).

    Time spent doing output work includes time spent by a worker in travelling19 for the purposes of doing such work. It does not, however, include time spent travelling19 between the worker's home or temporary lodgings and premises from which he or she works or, unless his or her work consists of producing tangible items at his or her home, premises to which he or she reports. Nor does it include time when he or she is engaged in taking industrial action24 (reg. 17).

    Unmeasured work

    Any other work that is not time work, salaried hours work or output work is unmeasured work including, in particular, work in respect of which there are no specified hours. The worker is required to work when needed or when work is available (reg. 6).

    Workers who do unmeasured work are, by definition, without set hours, non-salaried and neither pieceworkers nor commission workers. They could be, for example, bank nurses, domestic workers or wardens of youth hostels or residential care homes who are on site 24 hours a day (para. 199). Such workers may have certain tasks to perform, but no specified times when they must be performed. Their performance varies according to circumstances (para. 197).

    Unmeasured work includes time when the worker is travelling19 for the purpose of such work, but it does not include time when the worker is engaged in taking industrial action24 (reg. 18).

    PAY FOR NMW PURPOSES

    Various elements of a worker's remuneration may count towards pay for NMW purposes while others do not. Similarly, various deductions made by an employer from a worker's pay and some payments made by a worker to his or her employer are reckonable while others are not.

    The following do not count towards NMW pay:

  • loans or advances of wages (reg. 8(a));

  • pension payments, lump sums on retirement and compensation for losing a job (reg. 8(b));

  • court or tribunal awards, or payments to settle actual or potential court or tribunal proceedings, other than payments of amounts due under the worker's contract (reg. 8(c));

  • redundancy payments (reg. 8(d));

  • awards under suggestions schemes (reg. 8(e));

  • payments during absences from work (such as sick pay, holiday pay, maternity pay and guarantee payments) and payments for rest breaks or during industrial action (para. 131);

  • the actual or notional monetary value of all benefits in kind26, whether or not they are taxable (para. 104), other than living accommodation (reg. 9(a)), for which there is a maximum permitted offset of £19.95 a week27 (see the box on p.6);

  • deductions or charges made by the employer for the cost of providing accommodation to the extent that they exceed the maximum permitted offset27 (reg. 31(1)(i));

  • the monetary value of vouchers, stamps or similar documents that are exchangeable for money, goods and/or services28 (reg. 9(b));

  • premium payments for time work29 to the extent that they exceed the lowest hourly rate payable for that work30 (reg. 31(1)(c)(i));

  • premium payments for output work so far as they exceed the rate normally applicable to that work30 (reg. 31(1)(c)(ii));

  • allowances attributable to a particular aspect of a worker's working arrangements or to his or her working or personal circumstances that are not consolidated into his or her basic pay31, other than allowances designed to refund the worker in respect of expenses incurred by him or her in connection with the job and allowances attributable to his or her performance in carrying out his or her work32 (regs. 2(1) and 31(1)(d));

  • service charges, tips, gratuities or cover charges that are not paid through the payroll33 (reg. 31(1)(e));

  • deductions made by the employer from the worker's pay, or payments made by the worker to the employer, in respect of the worker's expenditure in connection with his or her job34 (regs. 32(1)(a) and 34(1)(a));

  • payments made by the worker to a third party on account of such expenditure35, or refunds of such payments made by the employer (regs. 34(1)(b) and 31(1)(f)); or

  • deductions made by the employer from the worker's pay, or payments made by the worker to the employer, for the employer's "own use and benefit"36 (regs. 32(1)(b) and 34(1)(c)) except those made: (a) in respect of the worker's conduct or any other event for which he or she (whether together with any other workers or not) is contractually liable (such as disciplinary deductions or fines); (b) to repay a loan or an advance of wages made to the worker; (c) to recover or refund an accidental overpayment of wages made to the worker; or (d) in respect of the worker's purchase of any shares, other securities or share option, or of any share in a partnership (regs. 33 and 35(a)-(d) and paras. 77-80 and 83).

    Such deductions and payments (unless, presumably, they are outlawed under ss.13-16 of the Employment Rights Act 1996), together with all other money payments received by the worker from the employer before deducting income tax and national insurance contributions, do count as pay for NMW purposes37. So do other lawful deductions from the worker's wages made by the employer that do not go into its pocket, such as the worker's pension contributions and union subscriptions (para. 81), and the cost of any goods or services that the worker freely buys from the employer38 (reg. 35(e) and para. 84).

    CALCULATION OF HOURLY RATE

    To calculate the hourly rate paid to a worker in a pay reference period, which can then be compared with the appropriate rate of the NMW in order to see whether or not he or she has been paid at least the NMW, divide his or her gross NMW pay (see above) in that period by the total number of hours of time work, salaried hours work, output work and unmeasured work done by him or her in the period (reg. 14).

    The total number of hours of time work done by the worker in the pay reference period is simply the time work worked by him or her in that period (reg. 20).

    The total number of hours of salaried hours work done by the worker in the pay reference period depends on whether or not the worker has worked more than the basic number of hours in a year for which he or she is contractually entitled to be paid his or her annual salary ("the basic hours"). If he or she has worked no more than the basic hours, the salaried hours work done will be the basic hours divided by 52 (if the worker is paid weekly); 12 (if he or she is paid monthly); or by 365 divided by the number of days, including non-working days, in the pay reference period (if that is neither a week nor a month) (reg. 21 and see paras. 152-154).

    Where the basic hours have been exceeded, the worker must be paid no less than the NMW for the extra hours unless he or she is contractually entitled to be paid for them (para. 155). To calculate whether or not, and if so when, the worker has worked more than the basic hours, see reg. 22 and paras. 156-169. To calculate whether or not the worker has worked more than the basic hours if his or her employment terminates before the year ends, see reg. 23 and paras. 170-172. Such complex calculations are likely to be necessary only for salaried hours workers who are paid close to the NMW (para. 173).

    The total number of hours of output work done by the worker in the pay reference period is:

  • the actual number of hours spent by him or her doing such work in that period, irrespective of the amount produced; or, if the worker's contract does not set any normal, minimum or maximum working hours and the employer does not in practice determine or control the hours worked by the worker39,

  • either the fair estimate of the number of hours of output work he or she is likely to spend doing the work to be done in that period contained in a "fair estimate" agreement between him or her and the employer (if he or she has worked that number of hours or longer in the period) or the total number of hours he or she has actually worked (if he or she has worked fewer hours than the fair estimate) (regs. 24 and 25(1)).

    To be "fair", the estimate must be at least four-fifths of the number of hours that an "average" worker would take to perform the same tasks in the same conditions (reg. 25(2)).

    The "fair estimate" agreement must be in writing; have been made before the pay reference period began; require the worker to keep a record of the hours of output work done by him or her in the pay reference period, and to supply a copy of that record to the employer as soon as reasonably practicable after the period ends; and be supported by a contract between the worker and the employer which entitles the worker to the agreed piece rate or commission rate for each "piece" produced, or for each sale made or item of business transacted, by him or her in the pay reference period (reg. 25(1)). See also paras. 184-192.

    The total number of hours of unmeasured work done by the worker in the pay reference period is:

  • the actual number of hours spent by him or her during that period carrying out his or her contractual duties (reg.27); or, where a "daily average" agreement in writing had been made between the worker and the employer before that period began (reg. 28(1)),

  • the whole or a proportion of the average daily number of hours specified in that agreement, provided that that is a "realistic" average (reg. 28(2)), depending on whether the worker was available to carry out his or her contractual duties on each day worked by him or her in the pay reference period for the full amount of time contemplated by the contract or for only part of that amount of time (reg. 29). See also paras. 202-207.

    RECORDS

    The Regulations require all employers to keep records "sufficient" to prove that they are paying their workers at least the NMW (reg. 38(1)) and any applicable agricultural minimum rate (reg. 38(4)). Employers who have an "accredited training" agreement (see p.3 above), a "fair estimate" agreement (see above ) or a "daily average" agreement (see above) with a worker must also keep a copy of that agreement (reg. 38(3)).

    The Regulations do not say what count as "sufficient" records. The situation will vary from employer to employer and from worker to worker, but the Guidance provides the following "general advice which should help employers decide what type of national minimum wage records they should keep".

  • For a worker who is paid well above the NMW, his or her employer's existing pay records may be sufficient to show that the worker is in fact receiving the NMW: for example, general pay records kept for tax or national insurance purposes. Such records would normally show amounts paid to the worker and the period that the payments are intended to cover (para. 219).

  • It is for the employer to judge when, for any particular worker, it should keep more detailed records specific to payment of the NMW. The closer to the minimum a worker's gross pay is, and the longer the worker works in a pay reference period, the greater is the risk that the worker could be paid below the NMW (para. 220).

  • If an employer wants to keep more detailed records, the extra information indicated in the box below could be kept about payments made to the worker and hours worked by him or her in a pay reference period (para. 221).

    Form of records

    The records required to be kept under the Regulations do not have to be kept in any particular form. They can also be kept on computer (reg. 38(8)). But the employer must be able to produce them in a single document, which can be of any length (para. 222), on request (reg. 38(2)).

    Retention of records

    Employers must keep records in the form prescribed by the Regulations for a minimum of three years after the pay reference period following the one that the records cover40 (reg. 38(7)). For example, where a worker is paid monthly, his or her records for the month of April 1999 would have to be kept for at least three years from the end of May 1999 (that is, until 31 May 2002).

    References

    1SI 1999/584, available from the Stationery Office, price £4.

    2These are specified in Schedule 2 to the National Minimum Wage Act 1998 (Commencement No.1 and Transitional Provisions) Order 1998 (SI 1998/2574 (C.61), available from the Stationery Office, price £1.10) and in the Schedule to the National Minimum Wage Act 1998 (Commencement No.2 and Transitional Provisions) Order 1999 (SI 1999/685 (C.19), available from the Stationery Office, price £1.50).

    3"A detailed guide to the national minimum wage", Department of Trade and Industry, March 1999. To obtain a free copy, call the NMW information line on 0845 8450 360. The Guidance is also available on the Internet at www.dti.gov.uk/ir/nmw/

    43.3.99, Hansard (HC) Sixth Standing Committee on Delegated Legislation, cols. 9 and 25.

    5ibid. col. 24.

    6"National minimum wage - a short guide for employers" and "National minimum wage - a short guide for employees", Department of Trade and Industry, March 1999. These can be ordered by calling the NMW information line. They are also available in large print, Braille and on audio cassette (call 0845 602 4027 or write to DTI national minimum wage, Freepost SE2693, London SE5 7XU).

    73.3.99, Hansard (HC) Sixth Standing Committee on Delegated Legislation, col. 10.

    825.3.99, Hansard (HC), col. 354.

    91.4.99, "The Guardian".

    10A list of others who are excluded from the NMW appears in National Minimum Wage Act 1998 (see also paras. 20 and 40-43). Everyone else must get the NMW if they are workers (see National Minimum Wage Act 1998 and also paras. 10-19).

    11As the Act expressly excludes schoolchildren, 16- and 17-year-olds (para. 21).

    12The main current schemes, the names and exact nature of which are subject to change, include those listed under para. 31.

    13However, those for whom the relevant authority has arranged a trial period of three weeks or less with a prospective employer must get no less than the NMW during that period.

    14Live-in au pairs and the like who do not enjoy the benefits of being treated as part of the family must, however, be paid at least the NMW (3.3.99, Hansard (HC) Sixth Standing Committee on Delegated Legislation, col. 11).

    15A company does not count as the employer for these purposes (ibid. col. 12)

    16There is no new employer where the worker's existing employer is taken over by another employer or where the worker moves jobs within the same organisation or from one employer to an associated employer (reg. 13(4) and (5)).

    17For further information, contact (in England and Wales) the DfEE Publications Unit (tel: 0845 602 2260), (in Scotland) the Scottish Qualifications Authority (tel: 0141 242 2214) or (in Northern Ireland) the Training and Employment Agency (tel: 01232 257777).

    18Therefore, provided that the worker is at work or nearby and is required to be there, both time when he or she is on standby or on call and downtime (that is, time during which a piece of plant or machinery, such as a computer, is inoperative) count as time work (see also para. 126). It follows that workers on zero-hours contracts must be paid at least the NMW (3.3.99, Hansard (HC) Sixth Standing Committee on Delegated Legislation, col. 28).

    19For the purposes of the Regulations, "travelling" means (a) being "in the course of a journey made by a mode of transport" (for example, on a bus) or making a journey on foot; (b) waiting at "a place of departure" (such as a train or coach station) to begin a journey otherwise than on foot; (c) waiting at such a place for a broken journey to recommence (either by the same or another mode of transport), discounting any time spent taking a rest break while waiting; or (d) waiting at the end of any journey, for the purpose of carrying out duties (eg to collect goods, to meet a customer or to start a job) or to receive training, again discounting any time spent taking a rest break while waiting (reg. 7). Such time is, however, counted in (a), but not apparently in (b), according to para. 127.

    20Travelling is "incidental" to the duties carried out by a worker unless duties involved in his or her work are "necessarily carried out in the course of the travelling", as in the case of bus drivers, bar staff on a train, or workers (such as, we suggest, motorcycle couriers or dispatch riders) "whose main duty is to transport items from one place to another" (reg. 15(3)).

    21That is, for example, off sick, on holiday or maternity leave, suspended or laid off. The worker may well be entitled to, respectively, sick pay, holiday pay, maternity pay, full pay or a guarantee payment, but neither those payments (if any) nor the length of the absences are counted when calculating the worker's hourly rate (para. 133).

    22Rest breaks include recognised lunch and tea breaks, rest breaks prescribed by reg. 12 of the Working Time Regulations 1998 and, we suggest, "breaks" from using VDUs within the meaning of reg. 4 of the Health and Safety (Display Screen Equipment) Regulations 1992.

    23This does not mean that the worker should not get paid rest breaks. It simply means that both the amount (if any) that the worker is paid and the length of the breaks are left out of account in calculating his or her hourly rate (paras. 125 and 132).

    24It makes no difference what form the industrial action takes or if the worker remains entitled to be paid under his or her contract. However, any such payments and every hour when the worker is on strike, working to rule, etc form no part of the calculation of the worker's hourly rate (para. 134).

    25The hours do not have to be specified for the whole year. They can be expressed as a weekly or monthly number instead (para. 151).

    26For example, free or subsidised meals (see paras. 105 and 106) and staff discounts.

    27See reg. 36 and paras. 109-114 for how to calculate the offset, and reg. 37 and paras. 115 and 116 for how to adjust that calculation for paid absences. The Low Pay Commission is concerned at the apparent complexity of the formula set out in reg. 36, but considers that it would be administratively sensible to let the Regulations settle in before assessing whether or not there are good grounds for making simplifications.

    28For example, luncheon vouchers and, we suggest, phonecards.

    29For example, overtime and shift premiums (see paras. 89 and 90). If the worker is paid at different basic rates for different jobs, rather than at premium rates for the same job, the whole of each rate can be included in the calculation of NMW pay (para. 91).

    30In other words, just the premium element of the payment does not count.

    31For example, unsocial hours payments, on-call or standby payments (although the NMW itself is payable when a worker is on call or on standby), payments for performing special duties, payments for working in unpleasant or dangerous conditions or in a particular area (eg London weighting or other regional allowances) and attendance allowances (paras. 92 and 93).

    32Expense and subsistence allowances and performance-related or merit pay do therefore count towards NMW pay.

    33Thus, tips that are channelled through informal systems whereby, for example, a troncmaster, rather than the employer, pools and redistributes the tips himself, do not count towards NMW pay (3.3.99, Hansard (HC) Sixth Standing Committee on Delegated Legislation, col. 14). Nor do discretionary tips that are left for the worker by the customer and pocketed by the worker. However, tips that are paid through the payroll (for example, by the employer to the worker after being collected or pooled centrally) do count (para. 74). So does a service charge that is included in the customer's bill and ends up in the worker's pay packet.

    34This might include the cost of a uniform, tools or other equipment needed for the job or protective clothing (paras. 96 and 99).

    35For example, travelling expenses (excluding the cost of travelling between home or temporary lodgings and work), overnight accommodation, laundry costs or the price of tools or other equipment which the worker has bought from someone other than the employer (paras. 94 and 100).

    36For example, deductions for meals (paras. 82 and 97).

    37In addition to a worker's basic pay, incentive payments and, in particular, payments of tax-relieved profit-related pay count towards NMW pay (28.7.98, Hansard (HC), col. 216). So do payments for piecework, commission payments and bonuses (paras. 72 and 73).

    38But if, for example, a bank requires its workers to bank with it, any sum it charges them for banking services will not count towards NMW pay (para. 85).

    39Output workers whose contract does set any normal, minimum or maximum working hours, and/or whose employer does in practice determine or control the hours they work (such as telesales men and women who work on their employer's premises), are time workers if they are required to work all those hours.

    40Employers may, however, be advised to keep relevant records for up to six years, which is the period that a worker claiming to have been underpaid has to bring an action for breach of contract in a civil court (para. 225).

    The National Minimum Wage Regulations 1999: main points to note

  • The Regulations exclude from the NMW all 16- and 17-year-olds; 18-year-old apprentices; apprentices aged 19 to 25 in the first year of their apprenticeship; some trainees on schemes funded by the Government or the European Social Fund; "sandwich" students and trainee teachers during their placement; homeless people doing work in return for shelter under not-for-profit schemes; people such as au pairs living and working as one of a family in their employer's home; and members of the employer's family doing household chores or working in the family business.

  • The Regulations set three different rates of the NMW: for workers aged 22 and over, either the "standard" rate of £3.60 an hour or an "accredited training" rate of £3.20 an hour; and for 18- to 21-year-olds, a "development" rate of £3.00 an hour which is likely to rise to £3.20 an hour in June 2000. Employers cannot pay new workers less than the NMW during a trial period at the beginning of their employment. They must be paid the NMW as soon as they start work. On an existing worker's 22nd birthday, he or she automatically becomes entitled to at least the standard rate.

  • Since the development rate is dependent solely on age, employers may want to ask workers to provide proof of their age. Employers intending to make use of the accredited training rate will need to agree in writing with those who are to receive it both the amount and type of training to be provided, as prescribed by the Regulations, and to keep a copy of the agreement. Employers of pieceworkers without set hours, or of other workers who work unspecified hours, may come to, respectively, "fair estimate" or "daily average" agreements, as defined by the Regulations, with those workers instead of paying them the NMW for every hour worked.

  • The pay reference period, for calculating whether or not the NMW on average has been paid over a period of time, is defined by the Regulations as the worker's actual pay period up to a maximum of one calendar month. Where the pay reference period is a month, one twelfth of an annual bonus paid to a worker in December can be allocated towards the worker's November pay but the remainder will count towards his or her December pay. Unilaterally changing a worker's pay period is likely to amount to a repudiatory breach of contract.

  • To work out whether or not a worker's pay is in line with the NMW, start with the worker's gross pay in the pay reference period and then discount or subtract payments and deductions made in that period that the Regulations stipulate do not count towards pay for NMW purposes. (Wrongly counting a component of a worker's pay that does not count could result in the NMW not, in fact, being paid to the worker.) Next, divide the resulting figure by the total number of hours of work done by the worker in the pay reference period that, according to the Regulations, count as working time for which the NMW is payable. Finally, compare that hourly rate with the appropriate rate of the NMW. Where a worker does different types of work for the same employer or, more usually, for different employers, a different hours calculation applies for each type of work that the worker does.

    Changes to original draft Regulations

    As a result of the public consultation on the first draft of the Regulations, the Government adjusted them in a number of ways which, it says, "reduce unnecessary burdens on business, but without compromising protection for workers". It estimates that the changes it has made, summarised below, should save business some £200 million in potential costs without jeopardising the benefits of the NMW or protection for workers in claiming it. The changes were welcomed by the CBI, and by the Better Regulation Task Force, but deprecated by the TUC.

  • The Government decided not to proceed, pending further consultation, with a requirement for employers to provide their workers, when or before they are paid, with a statement containing prescribed information about the NMW, while the Act empowers the Secretary of State for Trade and Industry to make that a requirement (see National Minimum Wage Act 1998). The Government believes that it is preferable to wait and see whether that should become necessary in the light of experience. Employers should, however, want to ensure that their staff know the basic facts about the NMW. The more they know, the less the likelihood of confusion or of complaints being made for the wrong reasons (para. 226 of the Guidance).

    The Guidance is intended to help with increasing awareness of the NMW and how it is calculated. In addition, employers may display basic information about the NMW as a "best-practice message" (para. 227). The Government hopes, but cannot require, that employers will display at the workplace a poster or statement for staff along the following lines:

    "On 1 April 1999, the national minimum wage came into force.

    The rates are:

    For most workers aged 22 and over:

    £3.60 an hour

    For workers aged 18 to 21 years:

    £3.00 an hour

    For workers aged 22 and over doing certain types of training in the first six months of a new job:

    £3.20 an hour

    For more details of the rates, who is entitled to the national minimum wage and who is not, and other information, you can telephone 0845 6000 678 (local rates apply)."

  • The Government also decided not to require employers to keep detailed records of the pay and hours of workers earning less than £1,000 a month or £12,000 a year gross.

  • Thirdly, the Government recognised that special rules should apply for annualised hours and term-time workers, who receive an annual salary in regular payments but who work irregular hours at different times of the year. The Government has devised such rules, the effect of which is to treat annual working hours as if they were evened out across the year, reflecting the evening-out of pay received. As a result, there should not be any need for employers or workers to restructure existing arrangements.

  • Lastly, the Government decided at the eleventh hour, but not before publishing conflicting preliminary guidance (which has since been withdrawn), to exclude from the NMW live-in au pairs, for example, if they are treated as part of their employer's family.

    Accommodation offset

    In view of submissions received from employers on the matter, on 16 February the Secretary of State for Trade and Industry, Stephen Byers, asked the Low Pay Commission - on top of its other remits (see IRLB 607) - to revisit its recommendation (reflected in the Regulations) that there should be a maximum amount of £20 a week offset against the NMW for the provision of living accommodation, and report to him by 19 March as to whether or not a higher offset or a different approach was necessary. The Commission's review of the offset41, containing three recommendations, was published on 31 March.

    The Government has accepted the Commission's recommendation that there should be no immediate change to the rate of the accommodation offset in the Regulations, but that the Commission should monitor the use and impact of the offset on businesses and employees. The Commission should also monitor the administration of the offset and, in the light of practical experience, report on the future application of the offset in its second report, which is due by December42.

    Intentional communities

    The Government has also accepted the Commission's recommendation that members of intentional communities should be regarded as "voluntary workers", within the meaning of s.44 of the Act (see National Minimum Wage Act 1998), and are thus not covered by the NMW. It will therefore be necessary to amend the Act, and the Government proposes to introduce a suitable amendment through the Employment Relations Bill currently before Parliament42.

    Level of NMW

    Professor George Bain, who chairs the Low Pay Commission, believes it would have been a mistake to rely on any rigid formula when setting the NMW. While the formulaic calculations may be interesting for comparative purposes, he says they can never fully take account of "the complexities of a modern labour market". The Commission's recommendations on the level of the NMW (see IRLB 595 and IRLB 597) were a matter of judgment, based on careful analysis of labour market data and consideration of the views of both workers and employers43.

    41"The national minimum wage accommodation offset - a review by the Low Pay Commission", available from the Stationery Office, price £10.50.

    4231.3.99, Hansard (HC), cols. 812-813.

    4321.4.99, DTI press release P/99/356.

    "Sufficient" records

    The Guidance gives the following examples of records of payments made to a worker and hours worked by him or her in a pay reference period that may count as "sufficient" for the purposes of reg. 38 of the Regulations:

  • the gross wages or salary paid to the worker;

  • the amount of any overtime and/or shift premiums;

  • the amount of any unconsolidated allowances;

  • any benefits received by the worker;

  • any deduction from the worker's wages or charge for providing him or her with accommodation;

  • the amount of any tips paid to the worker through the payroll;

  • the amount of the worker's NMW pay calculated as indicated above ;

  • the total number of hours worked, or the "fair estimate" or "daily average" of hours to be worked, by the worker calculated as indicated above ;

  • any absences from work, such as holidays or sick leave, or rest breaks taken by the worker or to which he or she was entitled;

  • any travelling or training undertaken by the worker during work hours and its duration; and

  • bank statements or other commercial documentation.

    The above is not intended to be a definitive or comprehensive list. The details of the records to be kept may differ from case to case and also according to the type of work being done (para. 222).

    The National Minimum Wage Act 1998 (Amendment) Regulations 199944

    These Regulations, which came into force on 6 March 1999, extend the Regulation-making power under s.3 of the National Minimum Wage Act 1998 to include those aged 26 or over who are:

  • in the first six months of a new job with a new employer;

  • participating in a scheme under which shelter is provided in return for work;

  • on a training, work experience or temporary work scheme;

  • taking part in a scheme to help them find or get work; or

  • on a sandwich course.

    In practice, these Regulations paved the way for some of those aged 26 and over in the above categories to be excluded from the NMW, or to have applied to them a different rate of the NMW, by reg. 12(5)-(12) and reg. 13(2)-(7) respectively of the National Minimum Wage Regulations 1999 (see above ).

    The National Minimum Wage (Offshore Employment) Order 199945

    This Order in Council, which came into force on 1 May 1999, extends the provisions of the National Minimum Wage Act 1998 - as well as implementing Regulations - to British and foreign workers who work, or ordinarily work, in United Kingdom territorial waters, or in the UK sector of the continental shelf where the work is connected with (a) exploring or exploiting the natural resources of the sea bed or its subsoil in the UK sector or (b) the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.

    In plain language, the Order mainly covers work done on oil or gas rigs exploring for or producing oil and gas offshore. It does not apply to workers on board ships that are in passage or engaged in fishing or dredging (which does not include the excavation of the sea bed or its subsoil in the course of pipe-laying).

    44SI 1999/583 (available from the Stationery Office, price £1), considered in Committee in draft form on 3 March (3.3.99, Hansard (HC) Sixth Standing Committee on Delegated Legislation, cols. 26-28).

    45SI 1999/1128 (available from the Stationery Office, price £1.50), considered in Committee in draft form on 24 March (24.3.99, Hansard (HC) Ninth Standing Committee on Delegated Legislation, cols. 3-14).