We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
Employment Tribunal rules in favour of claimants in minimum wage case – has the interpretation of “working time” changed?
The definition of “working time” under the National Minimum Wage ("NMW") Regulations is something of a headache for the health and social care sector. Whilst the regulations are clear that the definition includes time spent travelling between assignments and waiting time, they fail to go further and give any useful limits on this waiting time or confirm where waiting time finishes, and rest breaks start. Working time pauses when employees are on genuine rest breaks. A recent employment case, whilst not binding on future decisions, provides some indication of how the courts may decide these issues.
Nine members of staff from three contractors, Kaamil Education Limited, Diligent Care Services Limited and Premier Care Waiting Limited (all commissioned by Haringey Council in North London) bought tribunal claims for a breach of NMW regulations. They argued that their respective employer’s failure to pay travel and working time meant that they were owed between £850.25 and £17,800.74 each in backpay. The Tribunal agreed and the total award payable by the contractors exceeded £100,000. The staff in question had transferred to these employers by TUPE transfer, as had the liability for any breach of NMW Regulations which occurred prior to the transfer.
A key element of this judgement was the ruling that when calculating what is classed as "working time", travel between assignments and waiting time of up to 60 minutes would be included.
In this case the parties agreed a method of calculating the travel time between assignments using Google Maps/City Mapper to calculate journey times by car, walking or bus. This will be similar to the approach already used by many homecare providers.
This tribunal decision relied on the case of Whittlestone v BJP Support Ltd  IRLR 176 in this regard. In Whittlestone, the Employment Appeal Tribunal found that time travelling should be included except "when the claimant might have had so long between the end of one assignment and the next to return home…".
In this recent case, the Employment Tribunal applied the Whittlestone case and set out "two matters of particular relevance to homecare providers:
- The fact that the rostered appointments are devised and completely under the control of the employer;
- It might be helpful to analyse whether or not a gap is sufficiently lengthy to enable a carer to return home at the end of one assignment before travelling to the next appointment. (A point not expressly articulated in Whittlestone - but implicit, is that the carer must have a meaningful opportunity to rest or relax once they arrive back at home. It would be pointless if as soon as they put their key in their front door, they would have to turn around and travel to the next appointment).”
The method of calculation was not challenged by the employers and so is unlikely to be appealed. As noted above, this decision while still only at first instance is nevertheless an important one as there is little case law on the issue.
It is possible that HMRC will argue that gaps of less than 60 minutes will be considered “working time”. However, our view is that this case takes too narrow a view of when someone can be on a rest break and should have been challenged by the employers. For example, if someone is free to go shopping or to go and eat their lunch in a park, they would appear to be on a rest break, even though they may not have time to return home.
In our experience HMRC have worked based on waiting periods of more than, for example 20 or 30 minutes, as being a rest break. However, such interpretations will depend on the circumstances, and the opinions of HMRC inspectors or the tribunals.
- Do you have an appropriate method of calculating care workers’ travel time?
- How do you determine how much time workers spend waiting between assignments?
- Do you take into account all waiting time which is not designated as a rest break?
- Do you make clear to staff when their rest breaks are, for example by specifying that in their rotas, or by providing information in the statement of main terms and conditions?
- Are you satisfied that care workers’ rosters are well-planned, so that there is sufficient time for travel to take place, while avoiding short gaps which are regarded as travel time?
- Do you have a system in place to check whether you are paying NMW when all necessary travel and waiting time is taken into account?
- If a council or the NHS offers you a homecare contract previously held by another provider, have you checked that there are no NMW risks that you are going to acquire?
- If you don’t have the data to check, will the commissioner agree to indemnify you against claims, or otherwise provide sufficient information for you to check the position? If not, should you accept the contract?
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