Posted by Gemma Ospedale, Partner
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National Minimum Wage and working time
In a case which has important implications for the social care sector, Whittlestone v BJP Home Support Limited is an EAT decision which held that an employee who worked for a care home and was paid on an hourly rate basis with a flat rate for “sleepovers” was not in receipt of the national minimum wage. The Claimant provided care services to clients of the Respondent in their own homes. She travelled from home to home providing care for the service users and was paid £6.35 per hour for the time she actually spent providing care at the home of the service users. She was not paid for the time travelling in between homes. Additionally she was expected under her contract to cover some on-call work at nights, which encompassed shifts from 11pm to 7am, called sleepovers. These shifts are common in the social care industry. The purpose was to provide any care needed during the night for the adults under her care. She was able to sleep at the home and was provided with a bed and bedding. During the hours that the Claimant was undertaking the sleepovers, she was paid a flat rate of £40 per week. When the Claimant resigned, she brought a claim that she should have been paid the national minimum wage for her sleepovers, and also for the time she spent travelling between houses.
While the Claimant was clearly paid the national minimum wage for the time she actually spent with the service users during the day, she was paid less than the national minimum wage for the sleepovers. Having reviewed all the relevant case law relating to working time for the purposes of the Working Time Regulations, and the National Minimum Wage Regulations, the EAT found that, although she was able to sleep during her sleepovers, she was required to attend to the service users if needed. The fact that she was never needed was irrelevant: she did not have the time available for her own use to do whatever she wished. Furthermore she would have been disciplined if she had not been present at the time. Consequently the Tribunal held that she was entitled to be paid the national minimum wage for the full hours of her sleepover. The EAT also found that the time spent travelling between her service users was time work under the Working Time Regulations and that as such, again she was entitled to be paid for this.
In doing so, the EAT overturned the Tribunal decision which had dismissed the Claimant’s claim for the national minimum wage to be paid during the sleepovers and for the time spent travelling between assignments, on the basis that it had not properly and fully considered all the relevant case law. The EAT commented in its Judgment that the Tribunal had not had the benefit of two qualified lawyers presenting the respective parties’ cases, which may have been why the Tribunal erred in its application of the legislation and relevant case law.
This case has important implications for organisations in the third sector which provides services for service users in the social care arena. In circumstances where support workers (such as the Claimant here) are paid a flat rate salary, with a one-off payment for any sleepover or on-call nights undertaken, provided the annual salary, when divided by the number of actual hours worked (to include on-call hours when the worker is sleeping but has to be available) gives an hourly rate of above the national minimum wage, this should not be a problem. The difficulty with this case was that the Claimant was paid just above the national minimum wage only for the hours that she worked so there was virtually no leeway between the national minimum wage rate and her actual hourly rate to cover off the hours of sleepovers which were not paid at the minimum rate because of the flat rate of £40 paid to her. Consequently, a number of providers in the social care sector are having to look closely at their employment practices to ensure that they do not fall foul of this case.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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