27/10/2025
DBS v Foy & Kemp: A Cautionary Tale on Working Hours & NMW Compliance
Even large government agencies with extensive HR support can face National Minimum Wage disputes over basic contractual terms. (https://shorturl.at/lBe3Z)
The Issue: Two employees argued they were paid for a 42-hour week (37 working hours + 5 hours paid breaks), pushing their hourly rate below Minimum Wage during 2023-2024. The DBS countered they were paid for 37 hours only, with unpaid breaks.
The Maths: If paid for 37 hours = hourly rate ABOVE NMW
If paid for 42 hours = hourly rate BELOW NMW
The Tribunal's Finding: Despite the confusion, the contracts were clear:
First claimant (CRB contract): "37 hours excluding meal breaks", no mention of paid breaks
Second claimant (ISA contract): "37 net hours (excludes daily meal breaks of one hour) making 42 gross hours", breaks explicitly excluded from pay
Claims dismissed. The employees were paid for 37 hours, meaning their rates exceeded NMW.
Key Takeaways:
Clarity matters - Even with "considerable HR support," there was "confusion and lack of clarity" about basic pay calculations
Gross vs Net - Understanding these terms is critical: gross hours include breaks, net hours don't
Express terms win - Without explicit contractual provision for paid breaks, they're assumed unpaid
Historic practices and contractual rights - 90+ years of Civil Service working patterns don't override written terms
For employers: Review your contracts NOW. Are working hours, breaks, and what's included in pay calculations crystal clear to all employees? Don’t get caught out.
If you wish to chat about anything around Minimum Wage compliance:
Contact [email protected]
