Claimant v Commissioners for HM Revenue & Customs — 2022

The employer appealed against a HMRC notice of underpayment concerning national minimum wage compliance for eight named workers. The notice concerned two issues: deductions from wages for a workplace lottery syndicate, and whether attendance and timekeeping allowances counted as remuneration for national minimum wage purposes.

On the allowances issue, the tribunal found that the allowances were attributable to working arrangements, were included for pension and overtime calculations, but had not increased in line with national minimum wage rates and were treated as discrete elements of pay. Applying Regulation 10(k) and the EAT decision in Aviation & Airport Services Ltd v Belfield, the tribunal concluded that the allowances were not consolidated into standard pay and were not attributable to the workers' performance in carrying out the work. The appeal therefore failed on that issue.

On the lottery syndicate issue, the tribunal found that the deductions were made with worker consent for a lottery syndicate, were used to buy lottery tickets, and were not for the employer's own use and benefit. The tribunal accepted that any possible benefit to the employer was de minimis and concluded that Regulation 12(1) did not apply to treat those deductions as reductions for national minimum wage purposes. The appeal therefore succeeded on that issue, with the amount remaining due under the notice of underpayment left for further determination or agreement between the parties.