LEGAL COLUMN: Has the interpretation of ‘working time’ changed for home care providers?

Matthew Wort, partner at Anthony Collins Solicitors

Matthew Wort, a partner at Anthony Collins Solicitors, examines the legal implications of a recent tribunal that led to three home care providers being ordered to pay staff £100,000 in back pay.

In a decision of the employment tribunal earlier this month, three home care providers were ordered to pay nine members of staff backpay. This related to a failure to pay travel and waiting time, breaching the rules governing National Minimum Wage, resulting in a total award exceeding £100,000.

These organisations inherited the staff in question, as well as their pay arrangements from the workers’ previous employer under a TUPE transfer. This meant that the new employers also inherited the potential liabilities from the workers’ pay at the point the staff’s employment transferred.

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In this case, initially brought by Unison in 2016, the judgment set out that when calculating what is classed as ‘working time’, travel between assignments and waiting time of up to 60 minutes would be included.

National Minimum Wage legislation has always been clear that ‘working time’ includes the time spent travelling between assignments and waiting time.

On this occasion, the parties agreed a method of calculating travel time between assignments using Google Maps and City Mapper, assessing journey times by car, walking or bus. This is similar to the approach already used by many homecare providers.

The legislation also makes clear that time spent waiting to travel at the end of an assignment, or at the end of a journey for an assignment to start, counts as working time unless a worker is on a rest break. Generally, home care providers will schedule visits to limit waiting time between appointments, while building in appropriate rest breaks.

However, the regulations do not specify where the line should be drawn between time spent waiting to work and what can be regarded as a genuine rest break, nor is there much case law to help with interpretation. This tribunal decision relied on the case of Whittlestone v BJP Support Ltd [2014] IRLR 176.

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…’. It was important in this judgment that the ‘time was within the general control of the employer who was arranging the assignments.

When referencing the case of Whittlestone, the Employment Tribunal set out ‘two matters of particular relevance to homecare providers’:

  1. The fact that the rostered appointments are devised and completely under the control of the employer.

  2. Whether or not a gap is of sufficient length 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.

Guidance for UK home care providers

It is important to note that this latest decision does not set legal precedent due to it only being an Employment Tribunal decision. However, that does not mean it should be ignored.

The respondents, in this case, did not challenge the basis of the calculations used and therefore it is unlikely to be appealed or the judgement changed.

It was emphasised in this case that employers were in control of staff rotas. Therefore, it is critical that home care providers pay considerable care to rotas and, in particular, the gap left in between each appointment.

For home care providers considering taking over new contracts, it is also crucial that the right due diligence is carried out to identify any historic back pay liabilities which may be due to employees from the previous contract holder – avoiding a costly bill further down the line.

This case takes too narrow a view of when someone can be on a rest break. For example, if someone is free to go shopping or eat their lunch somewhere, they would appear to be on a rest break, despite the fact that they may not have time to return home.

This judgement has given much for care providers to think about, including the way they calculate care workers’ travel time and whether or not they have a system in place to ensure National Minimum Wage is paid after all travel and waiting time is accounted for. 

Matthew Wort is a partner at Anthony Collins Solicitors

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