The question of working hours and the impact of the Working Time Regulations, (“WTR”) on the National Minimum Wage, (“NMW”) is coming to the fore more and more frequently as HM Revenue and Customs (“HMRC”) concentrate their efforts on ensuring compliance with the NMW regulations. Indeed we have recently started to see the first prosecutions of a couple of high profile individuals within organisations for failure to comply with NMW regulations, which include an obligation to provide information to HMRC as well as to pay the correct amounts.

The issue of working hours is highly relevant in the boarding school sector. Whilst many staff are contracted to work normal working hours during term time they are also required to be “on call” to attend to pupils outside these hours. The result of this is that in future HMRC may take into account the “on call” time for the purposes of considering whether the NMW rules have been breached. This issue is in its infancy but so far the indications are that as far as European Court of Justice case law is concerned all on call time is to be treated as working time where the employee is required to remain at their place of work and to be available, even where they are able to sleep during their on call time. As a result where employees are required to work continuously they are entitled to an equivalent rest period to be taken immediately following the period worked. Consequently holidays taken outside term-time cannot count towards this rest period. It should be noted however, that given the small number of cases that have been considered to date a precedent has not yet been set.

Employees are entitled to the following under the WTR:

		Maximum working week - 48 hours. This is calculated on a 17 week average. (It may be possible to agree an opt-out from this requirement.)
		Minimum daily rest period – 11 hours in each 24 hours
		Minimum weekly rest period – 24 hours in each 7 day period or a continuous 48 hours in each 14 day period
		Rest break – 20 minutes uninterrupted in each working day of 6 hours or more.

It should also be noted that with effect from 1 October 2007 the minimum paid annual leave entitlement is now 4.8 weeks.

HMRC are in the early days of applying the NMW regulations and it is clear that the regulations do not sit comfortably within the education sector. Taking into account on call time when considering NMW may well present practical difficulties for boarding schools, which may not be resolved until we see HMRC undertake their first NMW reviews, which take into account all working time. If you experience an NMW review it is recommended that you take professional advice.