The EAT has upheld the claims of a care worker for National Minimum Wage (‘NMW’) for ‘sleepover’ shifts and travel time between care user appointments, in Whittlestone and BJP Home Support Ltd. The employee was paid £6.35 per hour for attending to care users at their homes but she was not paid for travel time. She also worked sleepover shifts for a flat rate of £40 per week.
The employee brought a claim for NMW in respect of travel time and the eight hour sleepovers. The Tribunal rejected her claim and she appealed to the EAT. The EAT found that the employee was entitled to NMW while she was required to be present at a care user’s home, even if she was sleeping. The entire shift was ‘working time’ for the purposesof the NMW because there was an agreement she would work and she would have been disciplined if she had not been present. The Judge noted that she could not for instance have slipped out to see a movie or for fish and chips! It was irrelevant whether she was asleep. It was her job to be present at the care user’s home and she had to be paid the NMW for the duration of the shift.
The EAT found that the employee was entitled to be paid NMW for her travel time between care user appointments. The employee was required to visit care users throughout the day. This constituted assignment work which meant that she was entitled to receive NMW for the time spent travelling between each assignment. The judge held that the NMW would not apply only where there was enough time for the employee to go to and from her own home between assignments.
This case is relevant for care providers who need to ensure that staff are paid NMW for the entirety of their shift (i.e. care and travel time, other than travel to and from home). Failing to pay NMW puts you at risk of employment tribunal claims, civil penalties and being publicly named and shamed by HMRC. Shift patterns may need to be restructured to limit the amount of travel time.
If you are concerned about whether your pay arrangements are compliant with the NMW, please contact a member of the Blackadders Employment Team.Sarah Winter Senior Solicitor – Business Services