The Employment Appeal Tribunal recently heard the case of Whittlestone v BJP Home Support Ltd ([2013] UKEAT/0128/13) and issued a ruling that may have implications for many domiciliary care agencies concerning how they pay their care workers. Tim Kenward reports.

Mrs Whittlestone (the claimant) was employed by the domiciliary care company (the respondent) to provide care services to service users. Under her contract, she was only paid for the time that she actually spent providing care at the home of a service user. The rate of pay was calculated on the basis of time spent from the moment of arrival at the home to that of departure. That interval of time was termed a shift, with each individual period of time spent with each individual service user being considered as one shift.

The rota was such that Mrs Whittlestone had a number of service users to visit during the day, often with little or no prospect of her going home between visits. Under her contract, time spent travelling between the home of one service user and the next to be visited was not counted.

She was also required to work “on-call” shifts at night, which were termed “sleepovers”. She was provided with a camp bed that she could use to sleep on overnight in the living room of the service user. As it happens, despite the regularity of her overnight stays, there was no evidence that Mrs Whittlestone ever woke from her sleep in order to provide any specific care.

Mrs Whittlestone claimed that she was entitled to be paid the National Minimum Wage in respect of time spent travelling between service users’ homes — ie not from her own home to the first service user, nor from the last visit of the day back home, but between the assignments to care for each service user. She also claimed that she was entitled to be paid for the “sleepover” at the rate of National Minimum Wage — rather than the sum she was actually paid by the respondent, which was plainly less than the National Minimum Wage if calculated on an hourly basis.

The decision of the employment tribunal

Mrs Whittlestone took this complaint to an employment tribunal. The tribunal dismissed her complaints. The “on-call” hours when the claimant was sleeping over could only be treated as work time when she was at work for the purposes of working, and there were no such hours. Accordingly, she was not entitled to the National Minimum Wage for these hours.

The tribunal found it clear and obvious that the claimant was not carrying out any care work or care duties during the time when she was travelling between one service user’s premises and the next. The claimant was simply transporting herself from one set of premises to another and, effectively, from one shift to the next. It followed that the National Minimum Wage was not payable in respect of this travelling time.

The decision of the Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT) came to a different conclusion. In the circumstances of this particular case, it decided that the National Minimum Wage applied to the time spent sleeping while on call. The evidence was that there had been agreement between the employer and the claimant that she would work. She would have been disciplined if she had not been present throughout the period of time; she could not, for instance, slip out for a late night movie or for fish and chips. The fact that her physical services were not called upon was irrelevant since her job was to be at the service user’s home.

As far as travelling time was concerned, the fact that the contract called each separate visit a “shift” did not mean that this was the same as if the claimant had been starting work at her employer’s premises at the start of an eight-hour shift, or thereabouts, and returning home afterwards. She was on the rota and obliged to visit each service user in turn during the course of the day, and inevitably there was travelling time between the visits. That time was within the general control of the employer, who was arranging the assignments. With the exception of those periods when the claimant might have had so long between the end of one assignment and the next that she was able to return home, the travelling time was time in respect of which the National Minimum Wage applied.

Conclusion

The EAT suggested that there is a danger in the use of concepts such as “on-call” or “core hours”, as they are liable to be misleading if they are used as tools of analysis rather than as handy descriptions of the circumstances of a particular case. They are not terms that come from the statute and the jurisdiction concerned is entirely statutory.

The National Minimum Wage applies to:

  • time during which the worker was sleeping (“sleepovers”, as required by her contract) in the homes of service users to whom she might have to attend

  • time spent travelling during the day between an assignment to care for one service user and the next assignment to care for another.

Last reviewed 13 January 2014