The shift to remote and flexible working arrangements has revolutionised the modern workplace, offering employees greater autonomy and work-life balance. However, this transformation has also brought unintended consequences, most notably, the rise of “hidden working time.” As the boundaries between professional and personal life blur, employees are increasingly performing work-related tasks outside their contracted hours, often without recognition or compensation. This phenomenon poses a significant risk for businesses, particularly concerning compliance with the National Minimum Wage (NMW) regulations.

The Normalisation of Hidden Working Time

In recent years the expectation that employees remain connected beyond standard office hours has become deeply embedded in workplace culture. It’s now common for workers to:

• Check and respond to emails during evenings or weekends
• Review rotas or schedules at home
• Answer messages from colleagues outside of contracted hours
• Complete mandatory training or prepare for meetings during personal time

While these tasks may seem minor or voluntary, they accumulate, often resulting in substantial additional working hours that go unrecorded. What began as a choice has, for many, become an unspoken expectation, one that is difficult for employees to resist and even harder for employers to monitor.

Remote Work: Blurred Lines and Hidden Hours

The flexibility of remote work, while beneficial, has made it easier for job responsibilities to spill over into personal time. Employees might find themselves logging in early, staying online late, or handling quick tasks throughout the day and evening. This “always-on” culture not only impacts employee wellbeing but also creates a compliance minefield for businesses.

Examples of Hidden Overwork

• Retail staff: Checking rotas or completing online training at home.
• Salaried professionals: Preparing presentations or responding to client queries after hours.
• Support staff: Handling urgent requests or system issues outside their scheduled shifts.

These hidden hours may not feel like formal work, but they are, legally and practically, part of the employee’s working time.

The National Minimum Wage (NMW) Compliance Challenge

UK law requires that all employees, whether hourly or salaried, receive at least the NMW for every hour worked. The calculation is based on:

• The total pay received in each pay period
• Any deductions made (excluding statutory deductions)
• The actual hours worked, not just those contracted

Unpaid working time is a leading cause of NMW underpayment. If a business fails to keep accurate records of hours worked, it risks non-compliance. During an HMRC investigation, employers must provide evidence of actual hours worked, not just contracted hours. HMRC may:

• Interview current and former employees
• Request login data from company systems to identify out-of-hours activity
• Examine patterns of work that suggest hidden overtime

Notably, even employers who pay well above the NMW can fall foul of the rules if excess hours bring the effective hourly rate below the legal minimum.

The Risk for Salaried Employees

For salaried staff, the risk is particularly acute. If an employee reaches their annual contracted hours before the end of the year, any additional hours worked must be paid at least at the NMW rate. For example, if contractual hours are met by the end of Month 11, all hours worked in Month 12 are considered “excess” and must be compensated accordingly.

Mitigating the Risk

To ensure compliance and protect both employees and the business, employers should:

• Monitor actual hours worked, not just contracted hours
• Encourage honest reporting of all work-related activities, regardless of when or where they occur
• Review flexible working policies to set clear expectations about out-of-hours work
• Educate managers and staff about the risks of hidden overtime and NMW compliance
• Regularly audit payroll and working time records to identify and address potential issues

Conclusion

Remote and flexible working have brought undeniable benefits, but they also demand a new level of vigilance from employers. The risk of hidden working time is real and can have serious legal and financial consequences. By proactively addressing these challenges, businesses can foster a healthier work culture and ensure compliance with the law, safeguarding both their employees and their reputation.