Unpaid working time may take pay below the minimum wage

78 of the 202 shamed employers breached minimum pay due to unpaid working time

An increasing number of employers are being caught and shamed for not ensuring that the average of relevant minimum pay rate in a pay reference period are paid across all working time.

Unpaid working time

The types of working time that reduced the average pay rate per hour to below minimum pay levels required included:

• Additional work before and after a worker’s shift
• Rounding clock-in time to the nearest hour
• Unpaid travel time
• Issues with final pay where employment has come to an end
• Pay is delayed / underpaid due to cashflow / cessation in trading / or ad hoc payments
• Paid for ‘regular’ hours or day rate, but a worker has worked for more time
• A salaried hours worker has worked in excess of basic hours
• Time for undertaking mandatory training
• Time worked during a sleep-in shift
• Trial shifts
• Overtime

Who is responsible for recognising and avoiding unpaid working time

Some may say this is the responsibility of payroll, however, payroll does not control how businesses and managers apply working time obligations on their employees and workers. Both central policies and local management activity may see employees being required to work either for free or below minimum pay levels.

So who is responsible? Employers are responsible for recognising and recording all working time for their workers.

It is important to ensure that all working time is considered for minimum wage purposes when paying staff. This can include times when the individual is required to be at work, or when they are required to be available at or near a place of work.

Simply paying a worker’s ‘rota’ or ‘contracted’ hours may not suffice and can lead to underpayment breaches.

For a more extensive list of what counts as working time, for all types of work, see Calculating the Minimum Wage guidance.

Unpaid working time reduces a worker’s pay for the purposes of minimum wage, potentially reducing the average rate of pay to be below minimum wage rates. This is a common cause of underpayment.

Employers are responsible for recognising and recording all working time for their workers. It is important to ensure that all working time is considered for minimum wage purposes when paying staff.

Common causes of unpaid working time

Additional working time added onto a worker’s shift involves time before the shift starts or after it ends. This type of unpaid working time may involve only small amounts of time but it has a cumulative effect if it occurs on a regular basis. It can lead to underpayment of minimum wage, especially for those workers who are paid at, or only slightly above, minimum wage rates.

Team Meetings that are unpaid

Team meetings where attendance is required counts as working time for minimum wage purposes. If a worker has to attend outside their normal paid hours then this is working time.

Waiting Time/Downtime

Time when a worker is waiting for work, whether downtime due to systems or services being down or a worker waiting to start a job or meet someone at/near the workplace, counts as working time for minimum wage purposes and must be included in minimum wage calculations.

Time spent travelling

Time that a worker spends travelling in connection with their job is working time for minimum wage purposes. This includes the time spent travelling between assignments or clients.

However, time spent travelling from ‘home to work’ and ‘work to home’ does not count as travel time for minimum wage purposes.

Time spent training

Time spent by a worker undertaking training is considered working time for minimum wage purposes if the training has been approved by the employer. This can include basic training at the beginning of a worker’s employment or ongoing training courses.

It doesn’t matter whether the training takes place at the place of work, at home or elsewhere. Similarly, it doesn’t matter when the training takes place as long as it is undertaken at a time when the worker would otherwise be working. If it is unclear whether the worker would otherwise be working because their hours of work vary, this will be
assumed to be time when the worker would otherwise be working.

Training time covers all activities associated with the training, included any associated travel time if this takes place during a time when the worker would otherwise be working.

Training time must be included in calculations for the pay reference period in which the training is carried out.

‘Sleep-in’ shifts

In some sectors such as the care sector, workers perform sleep-in shifts.

This means that workers:

• are contractually obliged to spend a shift at or near their workplace, usually at night but it could be during the day
• are expected to sleep for all or most of that shift
• are woken if required to undertake a specific work activity

Sleep-in workers are only working and eligible for minimum wage when they are awake for the purposes of working. Time when the worker is expected to sleep and is provided with suitable sleeping facilities is not considered working time for minimum wage purposes.

However, time when the worker is awake in order to perform a specific task does count as working time for minimum wage purposes and must be included in minimum wage calculations.

The position is different where workers are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible (such as napping when not busy). In such cases it is likely that at least the minimum wage must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time.

Other reasons

Other examples where additional time can be added onto a worker’s shift include those listed below. Each of them count as working time for minimum wage purposes so should be included in calculations of hourly rates of pay:

• Time spent putting on/removing Personal Protective Clothing/Equipment
• Time spent passing through security checks on entry and exit
• Time spent at team handovers between shifts
• Time spent attending to opening and closing duties
• Time spent cashing up and stocktaking
• When employers ‘round up’ late log in times (such as 15 minute rounding)

How can we find out more?

There are a number of places that detailed information can be found, often it is also good to speak to experts. 

PAYadvice.UK Simon Parsons will be presenting on National Minimum Wage on 14th July 2023 (and other dates) at the SD Worx Academy: National Minimum Wage – Advanced | SD Worx Academy

PAYadvice.UK 22/6/2023