Summary: The Employment Appeal Tribunal (EAT) recently clarified the correct approach to determining what hours are to be paid at the minimum rate of the National Minimum Wage (NMW). The EAT found that a claimant who had to perform ‘sleepovers’ in the homes of care service users was entitled to the NMW for all the hours spent at the service users' homes. She was also entitled to the NMW in respect of time spent travelling between assignments during the day where she was caring for different service users. This decision has implications outwith the social care sector.
In Whittlestone v BJP Home Support Ltd, the claimant was employed by BJP to provide care services to service users. She was paid £6.35 per hour. But that did not include time spent travelling between service users’ homes. She also had to undertake a number of eight hour ‘sleepover’ shifts for which she received only £40 per week. She was never, in fact, required to perform any caring duties during the sleepovers – she always slept.
The claimant was not salaried; she was paid for hours worked. She alleged that she was entitled to the NMW in respect of the time travelling between assignments and for the sleepovers. The President of the EAT agreed.
As regards pay for travel time: the claimant was on the rota to visit each service user during the day and could not return home. Therefore, travel time should have been taken into account when calculating the NMW.
As regards the sleepover pay: the President of the EAT gave some much needed guidance on when sleeping time will be working time for NMW purposes. He explained that the focus must be on whether any work was being done. The President seemed to acknowledge that although there is artificiality in saying that someone is working when he/she is sleeping, ‘work’ under the NMW Regulations does not mean physically doing an activity. It has proven difficult for the tribunals and courts to find an acid test for employers to apply so as to know if sleeping time counts as working time for time paid workers. However, the President appears to have considered the question this way: if a worker cannot “slip out for a late night movie or for fish and chips”, then he/she is likely to be working.
The travel time aspect of the claim will be of concern to some employers in sectors where non-salaried workers are not paid the NMW for time between assignments. The sleepover aspect of the decision will be of most importance to the care and security sectors, where workers are often asked to undertake work overnight where sleeping is permitted.
Perhaps now is the ideal time to audit your business regarding the NMW. Recently HMRC has been cracking down on employers who do not pay the NMW. Errant employers face naming and shaming by the Department of Business Innovation & Skills, and earlier in January 2014 Vince Cable announced he was unveiling plans to increase the maximum fine for non-compliance sharply, from £5,000 per employer to £20,000 per underpaid worker.
