There could be a shake-up on the cards for those employed as care workers following a decision in the Employment Appeal Tribunal. In particular regarding there pay during sleepovers at service user’s premises and when travelling between appointments.
It is widely accepted that Care Workers are drastically underpaid with a large swathe working for less than the minimum wage when an average hourly wage is calculated. At present despite the National Minimum Wage Act stating that travel time should be paid (apart from the first trip to work and the last trip back home) it is more common than not to find that the travel times between appointments are not paid for. This means that when these trips are factored in to the amount of hours worked in the day the salary will often drop below the minimum wage. This is highlighted in a Resolution Foundation publication.
Care workers also often find that their sleepovers (i.e. when they have to stay over at the service users place of residence) are either unpaid or they only get a minimal amount of pay and only if they are actually performing work, not whilst they are sleeping.
The case of Whittlestone v BJP Home Support Limited has potentially turned this on its head. In the original tribunal they dismissed the claim to be paid National minimum wage for the entirety of sleepovers and for travel time. However this was then appealed and the results are quite different.
In both cases the EAT held that the tribunal was incorrect and that the Claimant should have been receiving National Minimum Wage for both the sleepovers and travel time and reasons for this are explained below.
The employee should have been paid the NMW for the entirety of the sleepover regardless of whether they were sleeping or working. This is because the sleepovers are what are classed as “working time” in the National Minimum Wage Act.
The employee was required to be there and would have been disciplined if she had left. She was not able to “slip out for a late night movie or for fish and chips”
In the EAT’s eyes it did not matter whether the employee was sleeping or providing a service. It was her job to be there and she should have been paid for the entirety of the shift.
For the time between appointments the Appeal Tribunal held that she should have been paid for travelling.
In this particular case the employer called each appointment a shift however this does not detract from the fact that in line with the National Minimum Wage Act this can be seen as Assignment work. This means that the employer should pay the NMW for any time spent travelling.
They would only be able to avoid this situation if the employee had the time to be able to return home between appointments.
Impact on Care Workers
This is an important decision and one which could have a significant impact on the multitude of care workers out there. If your employer is failing to pay for your travel time or your sleepovers or indeed if on average you are earning less than the minimum wage this case adds more strength to your armoury.
If you are in this situation or have been dismissed because you have requested being paid the NMW please do not hesitate to contact us on [phonenumber] where a member of our professional team will be able to discuss your situation with you. We will be able to advise you on where you stand and give an indication of whether your case could be one that we took forward on a no win no fee basis.