Employees are entitled to be paid for all working time, at least at the level of National Minimum Wage (‘NMW’). What constitutes ‘working time’ for these purposes has been the subject of much litigation over recent years and getting it wrong can prove costly, as the recent case of Harris and others v Kaamil Education Ltd and others (summarized below) demonstrates. As such, and with an increasingly flexible and mobile workforce across all sectors, including real estate, Registered Providers and those in the care and support fields, it’s important to undertake a careful analysis of what may constitute working time and to pay accordingly.
This can include travel time, waiting time and time spent at work and available for work (although, there are exceptions, which require a careful evaluation of the facts). For example:
- travel time is treated as working time for NMW purposes, unless the travel is between the worker’s home and their normal place of work or the worker’s home and an assignment; and
- waiting time is also generally treated as working time if the worker is available for work and required to be at work – but this must involve a detailed analysis of what is in fact required, particularly for ‘sleep-in’ workers (prevalent in the care sector). Indeed, the rights of sleep-in workers have been a very contentious issue over recent years and we await the final judgment of the Supreme Court in the case of Royal Mencap Society v Tomlinson-Blake [2018]. The current status quo, following the earlier Court of Appeal decision in this case, is that care workers were merely available for work during their sleep-in shift rather than actually working; and as such, were only entitled to the NMW when awake for the purposes of working and not when they were sleeping during their shift. However, this may yet be reversed by the Supreme Court – which could have huge implications for the care sector.
Furthermore, employers should also keep in mind the government’s ‘naming and shaming’ scheme for organisations that fail to pay their workers the NMW, which has the potential to cause further reputational damage, on top of the commercial risks of getting it wrong.
Harris and others v Kaamil Education Ltd and others
The case of Harris and others v Kaamil Education Ltd and others is a recent, salutary warning for employers. Ten care workers were awarded a total of around £100,000 in back pay for periods during which they had received less than the National Minimum Wage (“NMW”). The care workers claimed that they should have been paid the NMW for travelling and waiting time between care appointments and whilst the Employment Tribunal did not in fact provide a legal opinion on whether the NMW was due to the care workers (in respect of travelling and waiting time), after four years of litigation the three home care providers agreed to pay this.
The care workers asked for the methodology of how they had calculated their claims to be included in the judgment by consent as a useful guide to other care workers wanting to make similar claims in the care sector. The homecare service providers did not oppose the method or calculation or put forward an alternative method. But it remains to be seen whether this methodology will be used in future cases, as Employment Tribunal decisions are not binding and aspects of the methodology used potentially underestimated the value of the care workers’ claims.
Employers should take real care when assessing what falls within and out-with ‘working time’ and should seek specialist advice where there is any doubt. What may appear to be a small judgment for one individual, can quickly become a significant liability over time and when multiplied across a group of employees.