The minimum wage: 20 FAQs

1. What is the current rate for the minimum wage?
2. Who must I pay the minimum wage to?
3. I have taken on a couple of 17 year olds. Do I have to pay them the development rate, or are there no restrictions on what I can pay?
4. I've taken on a 23 year old with no job experience whatsoever (she is a single mother). Do I have to pay her the adult rate?
5. Can I pay an employee less than the minimum wage, if they are willing to accept it?
6. We were persuaded to take on a lad with learning difficulties. He does his best, but he's not efficient. Do we have to pay him the minimum wage?
7. I employ my wife in the business, and I sometimes get my teenagers to put in a few hours too. Do I have to pay them the minimum wage?
8. We pay a mixture of flat rate and bonuses. Employees might not get pay equivalent to the minimum wage every week, but they probably would over the month. Is this acceptable?
9. Most of our employees do some overtime. Can we include overtime payments in calculating whether we are paying the minimum wage?
10. We employ people on a freelance basis, and at piece rates. Are they covered by the legislation, and if so, how do we translate piece rates into rates per hour?
11. We use a man with a van on a regular basis to make deliveries for us, but as far as we're concerned he's definitely self-employed. This isn't going to cause problems, is it?
12. We provide accommodation for our employees. How do we value that, when calculating whether they receive the minimum wage?
13. We run a catering business, and reckon that our employees double their takings from the tips. Surely we can make some allowance for this?
14. Our employees are entitled to buy products at a discount. Can we attribute a value to this 'perk', in calculating whether we pay the minimum wage?
15. Do we have to include travelling time in calculating the hours over which we have to pay the minimum wage?
16. Do we have to pay the minimum wage for the hours when people are 'sleeping over'?
17. We have an employee who says he wants to have a look at his records, to check whether he has been paid the minimum wage. Is he entitled to do so?
18. What records do we need to keep?
19. What penalties might we be subject to, if we failed to pay the minimum wage?
20. Can people who worked for us in the past for less than the minimum wage come back now and demand that we pay the extra?

1. What is the current rate for the minimum wage?

The main rate for those aged 21 and over is £6.08 an hour. 

The development rate which applies to workers aged 18 to 20 inclusive (sometimes called the youth rate) is £4.98 an hour.

The rate for those aged 16 and 17 (except apprentices) is £3.68 an hour.

Apprentices under the age of 19, or older than this but in the first year of the apprenticeship period, are entitled to a minimum of £2.60 an hour. Thereafter, apprentices aged 19 to 20 must be paid at least the development rate (£4.98 an hour from 1 October 2011), and older apprentices must be paid the adult rate or more.

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2. Who must I pay the minimum wage to?

Almost all workers in the UK are entitled to receive the minimum wage. Those who must be paid the minimum wage include full and part-time employees, homeworkers, piece workers, agency workers, migrant workers and casual workers. Workers do not require a contract in order to be eligible for the minimum wage.

Some workers are not entitled to the minimum wage. These include:

• the genuinely self employed
• school-age workers
• students on a work placement of less than one year which forms part of UK higher or further education courses
• students taking part in the Leonardo da Vinci or Youth in Action programmes
• voluntary workers
• residential members of charitable communities practising or promoting religious or other beliefs
• those employed in a Jobcentre Plus work trial - but only for the first six weeks of such a trial
• workers participating in the European Community Erasmus and Comenius programmes
• family members working for a family business who live in the family home and non-family members (such as au pairs) sharing the household's work and living in a family home

The average pay for each hour of work completed by eligible workers during any pay period must not fall below the minimum wage.

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3. I have taken on a couple of 17 year olds. Do I have to pay them the development rate, or are there no restrictions on what I can pay?

You should pay 16 and 17 year-olds (other than apprentices) at least £3.68 an hour.

The development rate (currently £4.98 an hour) only applies to:

• those aged 18 to 20, who are not undertaking an apprenticeship
• apprentices aged 19 to 20 (inclusive), unless they are in the first year of their apprenticeship

Apprentices under the age of 19, or older than this but in the first year of the apprenticeship period, are entitled to a minimum of £2.60 an hour.

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4. I've taken on a 23 year old with no job experience whatsoever (she is a single mother). Do I have to pay her the adult rate?

Yes - unless she is undertaking accredited training under a written agreement, in which case you can pay the training rate (which is the same as the development rate - see 1). The definition of accredited training varies according to where you are based (England, Scotland or Wales), but she must train on at least 26 days during the first six months, although the training does not have to take all day. You may only pay her the training rate for six months.

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5. Can I pay an employee less than the minimum wage, if they are willing to accept it?

No. Workers cannot sign away their rights. If a worker is over 18, and not a family member living in the family home and working within the family business, you cannot pay them less than the national minimum wage — unless they are working for therapeutic reasons only, with no contractual obligation to work at all, and no right to any payment or benefit (ie they are a voluntary worker). 

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6. We were persuaded to take on a lad with learning difficulties. He does his best, but he's not efficient. Do we have to pay him the minimum wage?

Almost certainly yes. If he is operating under some form of contract, express or implied, oral or in writing, to provide you with work or services, and you reward this with some sort of 'consideration' (usually money), then unless you can prove otherwise he will be a 'worker', and all workers are entitled to at least the minimum wage.

Your best chance of proving otherwise lies in abandoning any mutuality of obligation - that is, make sure it is clear that you are not obliged to provide him with work and he is not obliged to do it if you do. But even if both of you could live with this, you could have a hard time from HM Revenue and Customs (the policing body), not to mention the Employment Tribunal or County Court and the various disability organisations, if it gets investigated. You can pay him for his expenses only, without creating a worker's contract, and you might be able to pay him a daily allowance for coming in, providing you don't oblige him to work when he comes in, or penalise him for failing to do so.

Be aware that if you take someone on and then dismiss them because you find you have to pay them the minimum wage, you subject them to an illegal 'detriment', and they may be able to sue you for unfair dismissal. Take professional advice if you find yourself in this position.

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7. I employ my wife in the business, and I sometimes get my teenagers to put in a few hours too. Do I have to pay them the minimum wage?

No. If you are the employer, they are members of your family, and they share your family home, you are not obliged to pay them the minimum wage. With children who have moved away from home, however - or a wife or husband who has moved out - you would be obliged to pay it, as they are no longer living within the family.

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8. We pay a mixture of flat rate and bonuses. Employees might not get pay equivalent to the minimum wage every week, but they probably would over the month. Is this acceptable?

You must ensure that you are paying the minimum wage during each 'pay reference period'. This is normally the period over which you pay people - for example, weekly or monthly. It cannot be longer than a calendar month. However, you can base your calculation not only on the amount paid for that period, but also on the amount earned during it - for example, by way of bonus or commission - provided that the extra earned is paid in the next pay reference period. Obviously you cannot then count that extra towards the minimum wage in the second pay reference period - that would be double counting.

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9. Most of our employees do some overtime. Can we include overtime payments in calculating whether we are paying the minimum wage?

You have to strip out any overtime premium from the sum that you include in your calculations. To find the premium, you take the lowest rate that you pay each employee for the same work during normal hours, and deduct that from the amount that you pay in overtime. So for the purposes of calculating the minimum wage, you are effectively paying people for overtime at the lowest rate that you would pay for normal working.

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10. We employ people on a freelance basis, and at piece rates. Are they covered by the legislation, and if so, how do we translate piece rates into rates per hour?

If they are genuinely self-employed - that is, they have freedom to work for others, can refuse work, set their own hours, incur their own expenses, deal with their own losses and so on - they are not covered by the legislation. Otherwise they are. If they are covered, and you require them to work during given hours, you have to pay at least the minimum wage for each hour worked. If they are literally paid by the piece, you must now either pay them the minimum wage for the period actually worked, or introduce a system known as 'rated output work'.

To apply the rated output system, you must have conducted a test to determine the average speed at which the job can be completed. (In some circumstances you can adapt a previous test to make an estimate.) This test has to be undertaken using all workers, or a representative sample of workers, and in similar conditions to those of the piece rate workers - for example, it is not acceptable to base the test on the use of much better machinery than they will have. You must then issue the piece rate worker, in advance, with a notice which:

• says that such a test has been conducted (or that the speed has been estimated)
• says what average hourly output is
• says that the worker will be treated as having worked for the time that it would have taken him or her to complete the job at the average speed
• gives the rate to be paid for the work in question
• gives one of the National Minimum Wage helpline numbers

You are required to pay 120 per cent of the minimum wage (previously 100 per cent) for the time established by the testing procedure. This system has replaced the 'fair estimate' system previously used. Since the onus is always on you to be able to prove that you complied with the National Minimum Wage legislation, be sure to keep adequate records if you use the rated output system.

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11. We use a man with a van on a regular basis to make deliveries for us, but as far as we're concerned he's definitely self-employed. This isn't going to cause problems, is it?

Possibly. The Employment Appeals Tribunal has recently made a judgement in a similar case, establishing that the important points are:

• whether there is a contract to perform work or services
• whether there is an obligation on the person undertaking the work to do it personally
• whether the provision of work or services is made in the course of running a profession or business, and the other party is a customer

In particular the Employment Appeals Tribunal said that tribunals:

• must look carefully at any requirement for the individual undertaking the work to do it personally
• must evaluate the ‘mutuality of obligation’ – ie the company’s duty to provide work, and the individual’s obligation to do it

If you employ the man with a van on an occasional basis, as and when your deliveries are required, and not always then; and if he has no compunction about turning you down or sub-contracting the work if he is busy, he is obviously much less likely to be considered one of your ‘workers’ than if he makes regular deliveries for you every Friday, and keeps his Fridays free so he can do them personally.

In a case in 2008 involving a contractor providing services, the AA was found to be an employer and the contractor an employee by the High Court, on grounds that included the facts his work:

• could not be substituted for another’s
• was controlled, appraised and assessed by AA managers, just like that of AA employees

He therefore fell “on the employment side” of the line between employee and contractor.

If you suspect you may have acquired a worker without intending to, take professional advice. 

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12. We provide accommodation for our employees. How do we value that, when calculating whether they receive the minimum wage?

You can attribute a value to accommodation, when calculating whether your employees receive the minimum wage, but the value has to be calculated by a formula: £4.73 for each day that the accommodation is provided. If the accommodation you are providing is worth more than that, you will either have to take the loss or ask the employees to make a contribution — either way, the excess cannot be counted towards the minimum wage. 

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13. We run a catering business, and reckon that our employees double their takings from the tips. Surely we can make some allowance for this?

No - a recent case in the Court of Appeal has confirmed that employers must pay their staff at least the minimum wage regardless of any additional tips, gratuities or service charges they may obtain as part of their job. Even if all the tips are collected, pooled and divided equally, but by an employee designated as 'troncholder' - so that you know how much employees are making from them - you cannot include this figure when calculating whether your employees are receiving the minimum wage. 

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14. Our employees are entitled to buy products at a discount. Can we attribute a value to this 'perk', in calculating whether we pay the minimum wage?

No. The only benefit-in-kind to which any value can be attributed is accommodation (see 12). 

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15. Do we have to include travelling time in calculating the hours over which we have to pay the minimum wage?

Yes if the travelling is done on your business. However, you can exclude travelling between home and work - and that applies even if work is being done well away from your normal work site. You can also exclude rest breaks while travelling, although only if the employee has some choice over how those rest breaks are taken.

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16. Do we have to pay the minimum wage for the hours when people are 'sleeping over'?

There has been some to-ing and fro-ing over this. Current official guidance says that, if you specify hours when people may sleep in their employment contract, and you provide them with suitable sleeping facilities, then you do not have to pay them for those hours, except insofar as any work is done in them. If you do not specify any sleeping time, however, an Employment Tribunal might require you to pay for the whole of the time that the worker is at work.

The European Commission has obtained agreement that on-call time will be defined much more precisely, to differentiate it from working time and rest time. However, this change will have to be implemented through legislation in the UK. The proposal is to define 'active' on-call time, which will count as working time, as time which workers are required to spend at your premises, but during which they are not required to perform any duties. These changes are unlikely to become law before 2010. 

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17. We have an employee who says he wants to have a look at his records, to check whether he has been paid the minimum wage. Is he entitled to do so?

Yes. You must provide the information within 14 days of receiving a written request. Otherwise the employee can go to an Employment Tribunal, which may impose penalties on you.

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18. What records do we need to keep?

There are no strict requirements set out, but all employers must hold sufficient records to establish that they are paying workers at least the national minimum wage. You need to keep records because the onus of proving that you have paid the minimum wage is on you. If one of your workers (or ex-workers) claims that he has not been paid enough, it is not up to him to establish that he is telling the truth; it is up to you to prove that he is not. So keep sufficient records of hours worked and wages paid, together with ancillary evidence such as training agreements (see 3), details of rated output work (see 9), or 'daily average' of hours worked agreements. You need to keep your records for at least three years. 

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19. What penalties might we be subject to, if we failed to pay the minimum wage?

If you failed to comply with an enforcement notice, you would be served with a notice of underpayment, requiring you to pay the arrears to each named employee and a financial penalty. The penalty will be half the amount owing in arrears with a minimum of £100 and a maximum of £5,000. If you comply with the notice of underpayment within 14 days you will receive a 50 per cent reduction on the penalty charge.

Since 6 April 2009, a new method for calculating arrears has been in force. Employers will now be required to pay the current rate of minimum wage for the whole period of underpayment, even if lower rates of minimum wage were in force for some of that period.

You could also be prosecuted in the criminal courts for a range of offences associated with the minimum wage, including a deliberate refusal to pay it, fiddling the records, or attempting to mislead HM Revenue and Customs (which is the investigating authority). If convicted of any of these offences you could be subject to an unlimited fine. 

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20. Can people who worked for us in the past for less than the minimum wage come back now and demand that we pay the extra?

Yes. The minimum wage was originally brought in (at £3.60 an hour for adults, and £3.00 an hour for 18-21 year olds) in April 1999. Subject to the exceptions for family or voluntary workers (see 4 and 5), anyone who has worked for you since then at less than the minimum wage can require you to pay the difference. There is an overall limit of six years on the amount of arrears that can be claimed, however you can't make a claim more than six years after the arrears were due.