This article is based on part of a presentation given at the Care Showcase on 18 March 2015. A copy of the presentation can be viewed here.
When it comes to looking at a worker’s working hours, we have two different sets of regulations. Firstly there are the Working Time Regulations which set out the rules regarding rest breaks, daily and weekly rest, maximum weekly working hours and, of course, minimum annual leave. Secondly we have the rules regarding National Minimum Wage (NMW) which deal with what constitutes ‘work’ and therefore attracts NMW. The problem is that the two sets of regulations don’t always match up, and this can cause confusion for employers.
One of the areas where this creates problems is when it comes to sleep ins and travel time. These occur in a number of industries, but are a particular issue in the care sector.
Looking firstly at travel time, it has become common for domiciliary care providers (amongst others) to pay their workers based only on their ‘contact time’ i.e. the time they actually spend with clients. This can cause problems where the worker has to spend time travelling between appointments, and can lead to workers cutting appointments short to allow time for them to travel to the next client. HMRC has announced that it is investigating this area, where it believes that as many as 1 in 10 workers are paid below NMW.
The first thing I would say about this is that it is not unlawful to base your workers’ pay on their contact time. However, travelling between appointments on the employer’s business does constitute working time for NMW purposes. Employers therefore need to ensure that, when taken together, the worker’s pay for all hours over the reference period, i.e. contact time and travel time, averages out to at least the relevant NMW rate.
Travel from home to the first appointment and returning home after the last appointment do not constitute work, so do not attract NMW. However, this can lead to a grey area where (for example) staff on zero hours contracts have a gap between appointments. How long would the gap need to be for it to be assumed that the worker is travelling home? What if the worker is too far away from home to realistically go home within the gap? It seems that a case will have to come through to test these points – but of course no employer would want to be party to the test case!
If you have workers who are paid based on their contact time then it is important to keep an eye on the situation and take advice if you are unsure whether you are meeting the relevant requirements.
The Working Time Regulations state that time spent by a worker at their workplace whilst ‘on call’ is working time even when a worker is provided with sleeping facilities and permitted to sleep. Therefore employers need to take this into account when considering working patterns and rest breaks etc.
However, the test for NMW purposes is different. All workers must be paid NMW when undertaking work (the current limit for adult workers is £6.50 per hour). Also, some allowances do not count towards calculating NMW if not consolidated into basic pay (e.g. London weighting, unsocial hours).
When it comes to sleep ins, if a worker sleeps at or near a place of work, this is only treated as ‘time work’ for NMW when the worker is awake for the purpose of working. Employers who require staff to do sleep ins have often relied upon this to pay an employee a ‘sleep in’ allowance rather than an hourly rate whilst they are doing a sleep in shift. The case of Smith v Oxfordshire Learning Disability Trust (2009) found that a sleep in allowance could be taken into account when calculating average hourly pay over a pay reference period.
However, there is a developing line of case law that has shown that whether NMW is payable during sleep ins may depend on why the worker is present, and that Tribunals need to carefully consider this point. For example, in the case of Scottbridge Construction v Wright (2003) the worker in question was a nightwatchman, and the Court of Session found that his job was to be present (whether awake or asleep) and therefore he was entitled to be paid at least NMW for his entire shift.
A similar decision was reached in Middle West Residential Care Home v Slavisovka (2014), where the worker was required to be present to satisfy relevant regulations, as covered in our previous article here. Further, in the case of Whittlestone v BJP Home Support (2014) a carer was required to be present at a residence in order to safeguard 3 disabled service users during the night, she was found to have been entitled to NMW for her sleep in hours regardless of the fact that she had never, in practice, been called upon during those hours. (Mrs Whittlestone had also brought a claim in relation to NMW for her travel time between appointments, which also succeeded).
It therefore seems that there is a clear ‘direction of travel’ with these cases and that employers need to be aware of these developments and check whether their own arrangements may be vulnerable to challenge.
As well as claims for back pay and the threat of being ‘named and shamed’ there can also be criminal prosecutions and penalties of up to £20,000 for failing to comply with NMW rules. If you suspect that your sleep in arrangements may not comply, it is best to take advice.
We have experience of advising a number of different employers (both within and outside the social care sector) on sleep ins and travel time. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.