An employment agency breached National Minimum Wage (NMW) regulations by not paying enough to cover waiting time for workplace security checks on their workers.
Nexus Workforce Limited lost their appeal against a number of Notices of Underpayment for failing to pay NMW.
During HMRC investigation – it was identified that workers were required to undertake various activities including mandatory security searches following work shift completion which were unpaid. This required workers waiting in queues. Following investigations and negotiation with various parties including unions and the engaging organisation, the waiting time was agreed to take around an additional 11 minutes per individual.
The HMRC NMW auditors judged that all employees were underpaid as a result of this additional 11 minutes waiting time for each employee/worker involved in the search which included agency staff employed on a temporary basis.
There were no formal records kept of the time and it would vary between individuals, however, the 11 minute wait was agreed between the engaging employer and unions although not agreed with the original agency who has been transferred to Nexus through a TUPE arrangement.
The judge agreed that the use of 11 minutes in the circumstances of the case was appropriate, reasonable and suitable. The appeal against the notice of underpayments was rejected.
The employer has breached NMW and underpaid.
Opinion
A number of cases have shown that additional time at the beginning and end of productive work time is also work time. These may result in employers breaching minimum pay requirements.
When TUPE applies, the new employer inherits the NMW and other employment law breaches of the former owner.
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PAYadvice.UK 6/2/2024