L Lloyd -v- Elmhurst School Limited [2022] EAT 169
| Jurisdiction | UK Non-devolved |
| Judge | Michael Ford (Deputy Judge |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 16 March 2023 |
Judgment approved by the court for handing down Lloyd v Elmhurst School
© EAT 2022 Page 1 [2022] EAT 169
Neutral Citation Number: [2022] EAT 169
Case Nos: EA-2022-000029-OO
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 24 January 2023
Before :
MICHAEL FORD KC, DEPUTY JUDGE OF THE HIGH COURT
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Between :
L LLOYD Appellant
- and –
ELMHURST SCHOOL LIMITED Respondent
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Darryl Hutcheon (instructed by Unison Legal Services) for the Appellant
James Wynne (instructed by Cunningham Legal Ltd) for the Respondent
Hearing date 12 October 2022
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JUDGMENT
Judgment approved by the court for handing down Lloyd v Elmhurst School
© EAT 2022 Page 2 [2022] EAT 169
SUMMARY
NATIONAL MINIMUM WAGE
The claimant was employed as a part-time learning support assistant at the respondent school and
was paid a salary in equal monthly instalments. She worked three days (or 21 hours) a week during
term time and, according to clause (4) of her contract, was entitled to the usual school holidays as
holidays with pay. She brought a claim for unlawful deduction from wages, contending that she had
been paid at below the level of the national minimum wage. It was accepted that the claimant was
engaged in “salaried hours work” for the purpose of the National Minimum Wage Regulations 2015.
The tribunal dismissed her complaint, holding that her “basic hours” for the purpose of regulation
21(3) of the National Minimum Wage Regulations were based on 21 hours over 40 weeks, comprised
of (i) the 36 weeks she worked in term time and (ii) her four weeks’ leave due under the Working
Time Regulations 1998.
The appeal was allowed. The claimant’s “basic hours” for the purpose of regulation 21(3) were to be
ascertained from her contract and could include hours which were not working hours. Where a worker
is contractually entitled to receive his or her normal salary for a period of absence, such as contractual
holidays, the periods of absence from work can count towards the “basic hours” of salaried hours
work even if they are not absences from a period when a worker would otherwise be working. The
tribunal had erred in focusing on the weeks the claimant in fact worked, to which it had added her
statutory entitlement to paid annual leave, rather than ascertaining the claimant’s basic hours from
her contract alone.
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