NMWM05220 | Entitlement to National Minimum Wage: workers engaged in prohibited working arrangements

There are some circumstances when workers may find themselves employed to undertake a job which in law they are unable to do.

Example 1

Employment legislation restricts 16 and 17 year old workers from working in certain occupations. These include but are not limited to;

• Serving behind a bar when it is open for the sale of or consumption of alcohol;

• Employment in betting shops or premises for the purposes of gambling; and

• Employment in sex shops.

If a worker is found to be working in the above circumstances, case law suggests that if the worker is unaware of the illegality, the employer cannot rely on the illegality of the contract in order to avoid fulfilling his obligation under it and the contract will be enforceable. In these circumstances the worker will be entitled to receive the National Minimum Wage for the time worked under the contract.

Example 2

There is an obligation for an employer to comply with a licensing system to ensure certain standards are applied;

• Security guards;

• Nursing;

• Nurseries;

• Taxi drivers;

• Dental nurses;

• Gangmasters.

In the case of complying with licensing systems, the employer has to demonstrate to the appropriate authority that they are complying with their requirements. If they are not, the employer will be committing an offence. However, the workers in these cases are still likely to be working under a contract of service and not considered “illegal workers” for National Minimum Wage purposes. They will be entitled to National Minimum Wage in the normal way.

These examples contrast with illegal workers who know what they are doing is illegal (NMWM05200),

Where a worker has obtained a job on false pretences, e.g. misled on a CV, claimed qualifications they did not have - then the worker has been employed on false pretences and it will be an internal disciplinary matter for the employer (and possibly criminal action for fraud). However, whilst employed, the worker will be working under a contract of service and entitled to the National Minimum Wage.