Employees are entitled to the national minimum wage under the National Minimum Wage Act 1998. It is worked out by following the calculations set out under Regulation 14 of the National Minimum Wage Regulations 1999 (NMWR). Essentially, average hourly national minimum wage rates are calculated by dividing the ‘pay reference period’ by the total number of hours worked during that time.
The pay reference period is defined as “the total number of hours of time work, salaried hours of work, output work and unmeasured work worked by the worker.”
The total number of hours worked therefore need to be calculated and it has long been an issue for employers to try to determine what constitutes ‘work’ for these purposes, something that particularly affects the care industry.
Care work
Many definitions of work are provided for under the NMWR and the recent case of Whittlestone v BJP Home Support Ltd [2014] focused on Regulation 3 and the definition of ‘time work’.
This case concerned a care worker, who was paid at an hourly rate while she cared for service users in their own homes. Ms Whittlestone was required to undertake sleepover shifts during the night between 11pm and 7am, where she had to sleep in the homes of the service users to provide care through the night if needed. She was provided with a camp bed to enable her to stay overnight.
Definition of work
‘Time work’ is defined as “work that is paid for under a worker’s contract by reference to the time for which a worker works and is not salaried hours work.”
The Employment Appeal Tribunal (EAT) was required to consider whether the time spent on the sleepover element was considered ‘time work’ for the purposes of the NMWR and would therefore be a necessary component of the pay reference period in relation to national minimum wage.
The EAT outright rejected the suggestion that only core hours were offered protection under the NMWR and found in favour of Ms Whittlestone, in that her sleepover hours should be counted as ‘time work’, since she was required to be at the service user’s home during the entire period of the sleepover. The tribunal noted that there was agreement between the employee and employer that she would work and she would have been disciplined if she had not remained present throughout the entire sleepover period.
Pay reference period
The result was that the sleepover element had to be considered within the pay reference period. This contrasts with employees who are ‘on call’ and not required to be at work or a place of work during the on-call period.
Importantly, the EAT also found that time spent travelling between appointments was considered to be ‘assignment work’ for the purposes of Regulation 15(3)(b) NMWR, which states “time work is assignment work if it consists of assignments of work carried out at different places between which the worker is obliged to travel that are not places occupied by the worker’s employer.”
Ms Whittlestone was provided with a rota that she had no control over and that required her to travel between service users’ homes without the ability to go to her own home in between. The tribunal therefore found this to be working time. They did, however, find that travel to her first appointment and her journey home fell outside the scope of Regulation 15.
Guidance on paying the National Minimum Wage
The EAT’s finding that both sleepovers and travel time falls within the various definitions of ‘work’ for the purposes of NMWR may have far-reaching consequences, not least for those within the care industry.
The fact that Ms Whittlestone was entitled to be paid simply for being on the premises, regardless of whether she worked or not, could have an impact on those employers seeking to enforce contracts with core hours and non-core hour elements.
Employers should note that a global approach will be taken for the purposes of calculating the pay reference period, as the EAT rejected the idea of drawing a distinction between core and non-core hours with time falling within ‘time work’ equally subject to the national minimum wage.
It is particularly worth noting that where an employer implements a rota with inevitable travel time between customers or service users, this travel time may well fall within the ambit of Regulation 15 NMWR and also require remuneration under national minimum wage. If sufficient time is allowed for the employee to go home between assignments, travel time may fall outside of the regulation.
It is a difficult situation for an employer to find themselves in and failing to pay the National Minimum Wage can result in catastrophic consequences for a business. It is therefore imperative that employers who find themselves in these sorts of circumstances ensure that they are considering the full extent of what constitutes ‘work’ and whether they are complying with NMWR and national minimum wage.
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