Labour Research February 2014

Law Back-up

Care workers must be paid for travel time

This month’s Back-up looks at an employment tribunal decision with very important ramifications for care workers across the country. An Employment Appeal Tribunal has confirmed that under the National Minimum Wage regulations, hourly-paid care workers must be paid the National Minimum Wage, both for travel time between assignments and also for time spent sleeping on overnight stays.

In Whittlestone v BJP Home Support Limited [2013] UKEAT 0128/13/1907, Whittlestone was a care worker employed to provide care to service users in their own home. Under her contract, she was paid hourly for “shifts”.

Each shift was calculated from the moment she arrived at the home to the moment she left. She had a number of different service users to visit each day, with no realistic prospect of going home between visits.

Under her contract, time spent travelling, which she did by bus between the homes of the different service users, was not paid.

The Employment Appeal Tribunal (EAT) said the employer’s non-payment of time spent travelling between appointments was a breach of the National Minimum Wage (NMW) regulations. Whittlestone was a “time worker” under these regulations. In other words, her work was paid for by reference to the amount of time taken.

The EAT said that she was entitled to be paid for her travel time between each appointment because it qualified as “assignment work” under regulation 15(3)(b).

In other words, the work consisted of “assignments of work to be carried out at different places between which the worker is obliged to travel that are not places occupied by the worker’s employer”.

Whittlestone was on a rota organised by her employer, and since she was obliged to visit each service user in turn during the course of the day, there was inevitably travelling between them. That time was within the employer’s control when arranging the assignments, said the EAT.

With the exception of any periods when the gap between assignments was long enough for Whittlestone to go home (there were none in this case) the time spent travelling was “assignment work” and she was entitled to be paid for it.

Continued failure by employers to pay the NMW following this case can be expected to result in strategically targeted large-scale tribunal claims supported by unions, as well as naming and shaming of employers to the Inland Revenue.

The UNISON public services union describes this case as setting a “very clear benchmark” for what is expected of employers in this sector. It is good news for workers, including those on so-called “zero hours” contracts and it will help strengthen union campaigning on this vital issue.

Some rogue employers may try to take evasive action in response to the judgment, for example trying to rearrange schedules to allow enough time (in theory) to go home between each visit, only recruiting workers who live within a fixed geographical area or breaking employment continuity to make it harder for workers to make large backdated claims based on past failures to pay.

The case is also important because of what it decides about overnight stays.

Whittlestone’s contract required her to perform extra duties, described in the contract as “on call shifts”. Failing to make herself available for an on call shift could result in disciplinary action.

She had one regular weekly overnight shift at the home of three young adults with Down’s Syndrome for which she was given a camp bed and bedding, set up in the living room. As it happens, she never had to wake up to provide any specific care.

The EAT said that she was entitled to the NMW for the whole of the time spent providing this overnight shift, even though she was sleeping and did not have to wake to provide any specific care.

Where a person’s presence at a place of work is required as part of their work, said the EAT, the hours spent there will be time work for which the NMW must be paid.

This is regardless of how much physical or mental activity they are engaged in. Simply being there, at the disposal of the employer, is what makes it work.

In this case, specific hours at a particular place were required, under threat of discipline if she failed to attend. She was at the disposal of the employer during that period. “She could not, for instance, slip out for a late night movie or for fish and chips”.

The EAT added that terms like “on call” or “core hours” appear nowhere in the National Minimum Wage regulations and are unhelpful.

In particular, they encourage employers to believe that what matters is the level of physical or mental activity at work.

That is not relevant. Instead, all that matters is whether the individual is working under a contract to provide services personally during the hours for which pay is claimed. If so, the National Minimum Wage must be paid.

In the past, said the EAT, confusion has resulted from regulation 15(1) of the NMW regulations.

This says that where a time worker “by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours permitted to use those facilities for the purposes of sleeping shall only be treated as time work when the worker is awake for the purpose of working”.

This regulation is not relevant where a worker is contractually obliged to be at work, even if asleep.