Claimant v Disclosure and Barring Service
Outcome
Individual claims
Tribunal found claimants contracted to work 37 hours per week excluding unpaid meal breaks. Mr Foy's contract stated 37 hours excluding meal breaks with no mention of payment for breaks. Mrs Kemp's contract stated 37 net conditioned hours excluding daily one-hour meal breaks, making 42 gross hours. Tribunal interpreted both contracts as providing pay for 37 hours only, with meal breaks unpaid. As agreed by parties, if paid for 37 hours only, hourly rate exceeded national minimum wage during relevant periods. No express provision for paid breaks found in contracts or supporting documentation.
Claim based on assertion that claimants were paid for 42-hour week (37 hours work plus 5 hours paid breaks), which would result in hourly rate below national minimum wage during April-September 2023 and April 2024-January 2025. Tribunal found contracts provided for 37 paid working hours only, with meal breaks excluded and unpaid. Applying 37-hour divisor, hourly rate was above applicable national minimum wage thresholds. Respondent discharged burden of proof under s.28 National Minimum Wage Act 1998 by demonstrating through contractual interpretation that claimants were paid for 37 hours, not 42.
Facts
Two claimants employed by Disclosure and Barring Service (formed 2012 via merger of Criminal Records Bureau and Independent Safeguarding Authority) claimed underpayment of national minimum wage. First claimant started with CRB in 2008, second with ISA in 2012. Both claimed they were paid for 42-hour week (37 hours work plus 5 hours paid breaks) resulting in hourly rate below NMW during April-September 2023 and April 2024-January 2025. Respondent argued contracts provided for 37 paid hours with unpaid meal breaks, making hourly rate compliant with NMW. PCS union had raised grievance with DBS since September 2022 without resolution.
Decision
Tribunal dismissed both claims. Judge found through contractual interpretation that both claimants were contracted to work 37 paid hours per week with meal breaks excluded and unpaid. First claimant's contract stated '37 hours excluding meal breaks' with no mention of payment. Second claimant's contract stated '37 net conditioned hours excluding daily meal breaks of one hour making 42 gross hours'. Applying 37-hour divisor, hourly rates exceeded applicable NMW thresholds. Tribunal also found 2023 deductions out of time, forming separate series from 2024 deductions, and it was reasonably practicable to present claim in time given PCS union support.
Practical note
Contractual interpretation of working hours must focus on express terms at time of contract formation; distinction between gross attendance hours (including unpaid breaks) and net paid working hours is critical in NMW calculations, and overtime policy references to gross/net hours support this distinction rather than evidencing paid breaks.
Legal authorities cited
Statutes
Case details
- Case number
- 2407183/2024
- Decision date
- 8 September 2025
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- public sector
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Administration Officer
- Salary band
- £20,000–£25,000
Claimant representation
- Represented
- Yes
- Rep type
- union