National Minimum Wage Team Response

Jill G received the following response from the National Minimum Wage Team.

Dear Sir/Madam

Thank you for your e-mail requesting information regarding
the National Minimum Wage and its application to Therapeutic and Disabled
workers.The legislation states that most workers in the U.K. must be paid the
national minimum wage if they have a contract of employment. There are currently
no exemptions for workers with disabilities or special needs within this
legislation. If a contract of employment, implied or otherwise exists through
which they receive remuneration they are entitled to the national minimum wage
for the hours worked. Those who do not receive remuneration or whose
remuneration is paid directly to a hospital, institution or associations not
likely to be entitled to national minimum wage pay.An internal meeting was held
with the Dept. of Trade & Industry to specifically discuss the position of
disabled and therapeutic workers and the national minimum wage. The purpose of
the meeting was to help organisations which provide work based activities for
individuals who are not in the general labour market or who are being introduced
gradually to it, and may therefore find it hard to identify the point at which
an individual becomes a worker in the eyes of the law.The Act defines a worker
as someone working under a contract of employment (an employee) or someone
working under some other form of contract (a worker's contract) which means that
he performs work personally for someone else but is not self employed. There has
to be a legal agreement between the two parties, which involves obligations on
both sides. The contract does not need to be written; it may be an implied
contract or an oral contract.Where it is uncertain whether a 'worker's contract"
exists or not, tribunals and courts will take into account a number of factors
that will indicate whether there is a contractual relationship. These
include;that the intention of both parties is to create a relationship of
employer and worker, with the associated mutual obligations, rather than simply
to enable the individual to acquire certain skills, experience or therapy; that
the individual is rewarded (with money or benefit in kind) and the payment is a
wage related to work actually done and which the individual has a right to
receive, rather than the payment being an ex-gratia allowance.#

A tribunal will decide every case on its own merits. It is entirely in the hands of the
organisation and individuals concerned whether they create legally binding
contracts between them.Under the terms of the National Minimum Wage Act, in
cases of doubt, the assumption is that the individual is a worker and it is for the alleged employer to prove otherwise. If in doubt organisations are advised to take their own legal advice.An NMW guide on Therapeutic Work can be obtained from the DTI website on dtipubs@...

For security reasons specific personal data may have been
removed from this e-mail.

Regards,

National Minimum Wage eContact team.

National
Minimum Wage Helpline 0845 6000 678 Opening hours: 9am-5pm Monday-Friday, excluding Bank Holidays.Web Site:

I think its interesting that the Minimum Wage Unit met with the Department of Trade and Industry to discuss how the National Minimum Wage should be uniquely applied to disabled people as this strikes me as discrimination. It's encouraging to see that Tribunals and Courts will assume a contract of employment exists in cases of dispute until proved the employer proves otherwise but still see a real need for the Minimum Wage Unit and DTI to investigate how to afford disabled workers the same National Minimum Wage and rights as other individuals particularly in cases like this one where Surrey and Borders MHS Trust were clearly using disabled people to keep their commercial garden centre functioning properly rather than giving them meaningful job opportunities or training them. I really dont think that there should be this legal grey area between the Permitted Work rules and the National Minimum Wage, but there is and that is the dire situation the Surrey and Borders garden centre workers are in. It would be illegal for an employer to employ a non-disabled person in this way and it seems to me that the way to close the loophole and reduce exploitation is to ensure that trainees are paid a miniumum training allowance as well .