firm news

Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
more
Can you earn whilst “sleeping on the job”?
27 November 2013

We report on the case of Whittlestone v BJP Home Support which focuses on the issue of whether, under the National Minimum Wage Regulations 1999, you can earn whilst "sleeping on the job"…

Facts

Mrs Whittlestone was a care worker employed by BJP at the rate of £6.25/hour, calculated based on the time she actually spent at a patient’s home from the moment she arrived there until she left. Her work rota meant she usually saw several patients a day. She was not paid for the time she spent travelling between the patients’ houses, which she did by bus.

She also provided a “sleepover shift” (from 11pm to 7am). This shift required her to stay overnight at the patient’s home and provide care if required during the night, although there was no evidence of care being needed. She was allowed to sleep when not required to give care. The “sleepover shift” attracted a nominal payment of £40 per week – this would be below the National Minimum Wage (NMW) if you calculated the duration of the actual shift.

Following her resignation Mrs Whittlestone brought NMW claims in respect of both her travelling time and the “sleepover shift”. The question for the Courts was whether such time was “time work” for the purposes of the National Minimum Wage Regulations 1999?

Decision

The Employment Appeal Tribunal (EAT) considered whether Mrs Whittlestone could claim an entitlement to the NMW for her travelling time between patients’ houses. They found that this travel was not incidental to her “time work” as she did not return to the office or her home between visits but travelled constantly to see the patients assigned to her throughout the day. The EAT held this made it “assignment work” and therefore her travelling time should be remunerated. In respect of the “sleepover” shifts, the EAT held that the ET had been wrong to divide her work into “core hours” and “on call”/non-core hours. The EAT found that both types of hours could be “working hours”. As Mrs Whittlestone was required to be present at the patient’s home during the shift, irrespective of whether she was performing any tasks, this meant she was also entitled to the NMW for the sleepover shifts.

Summary

Contractual arrangements, like those for the care worker above, are quite usual throughout the care worker industry and this case is good news for poorly paid care workers. For employers who rely on “time work” contracts, this case indicates that Tribunals are not willing to accept a distinction between “core hours” and non-core/”on call” hours for the purposes of deciding pay, even if these are terms used in the care worker’s contract of employment.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

For more information about this issue or to find out more about how the Employment team can help you, please contact the team on 0118 952 7284 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

award winning law firm

Boyes Turner are proud to have received the following awards and recognition.

awards