Miss L Viner v Lynsey Sampson — 2021

Miss Viner worked as a beauty therapist for Mrs Sampson, trading as Ruby's Hair and Beauty, from 12 March 2018. The tribunal found that the respondent kept no records of hours worked and that the claimant's working pattern varied, but that she generally started shortly after 9am on Thursdays and Fridays and worked until the salon closed, with Saturdays usually running from about 9am until 2pm or 3pm. On that evidence, the tribunal estimated her actual working time at about 21.5 hours per week and rejected the claimant's case that the calculation should be based on a 24-hour week.

Applying section 28 of the National Minimum Wage Act 1998 and the wage provisions in the Employment Rights Act 1996, the tribunal held that Mrs Sampson had failed to pay the National Minimum Wage and had made unauthorised deductions from wages. It accepted that the respondent had not kept sufficient records to prove correct payment and therefore gave the claimant the benefit of the doubt in estimating her hours. The tribunal also accepted that the claimant remained employed during the Covid-19 furlough period, and found an implied variation that payment during furlough would be limited to 80% of contractual hours.

The tribunal found no underpayment during the apprenticeship period on its 21.5-hour calculation because the weekly apprenticeship pay of £84 exceeded the amount due at the relevant apprentice rate. It found underpayments from 12 March 2019 onwards, including after the claimant's age-related National Minimum Wage rate increased on 1 April 2019 and again when she turned 25 on 6 August 2019. It then calculated the shortfall across the later periods, including the furlough period from 21 March 2020 and the return to work until resignation on 31 August 2020, and ordered the respondent to pay £7,228.11 gross.