In the recent case of Harris and others v Kaamil Education Ltd and others, ten care workers were awarded a total of around £100,000 in back pay for being paid 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 after four years of litigation the three home care providers agreed to pay this. The Employment Tribunal did not therefore provide any actual legal opinion on whether the NMW was due to the care workers in respect of travelling and waiting time based on the specific factors of the case. Generally, however, travel time is treated as working time for NMW purposes, unless the travelling is between the worker’s home and their normal place of work or the worker’s home and an assignment. Waiting time is also generally treated as working time if the worker is available for work and required to be at work although there are some exceptions including sleep-in time.
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. 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.
As can by seen from this case claims for back-dated non-payment of the NMW can be costly, lengthy and also cause reputational damage for organisations with this issue receiving increasing press and public attention (this case was covered in the national newspapers). The government’s naming and shaming scheme for organisations that fail to pay their workers the NMW is also now resuming following the scheme being suspended for a period of time.
Carefully considering what amounts to a worker’s working time is important for ensuring that the worker is not paid less than the NMW and also that the worker is given the appropriate rest breaks under the Working Time Regulations (“WTR”). What makes matters complicated is that what counts as working time differs depending on whether the issue is being considered under the NMW Regulations or the WTR. For example, a worker doing a sleep-in shift could be regarded as working for the purposes of the WTR but not regarded as working (and therefore not entitled to the NMW) under the NMW Regulations.
The rights of sleep-in workers has been a very contentious issue over the last few years. Most of the case law has recently been overruled by the Court of Appeal in the case of Royal Mencap Society v Tomlinson-Blake , which is currently on appeal to the Supreme Court. Although the case was heard by the Supreme Court on 12 and 13 February 2020, we are still awaiting the judgment. The Court of Appeal decided that care workers were merely available for work during their sleep-in shift rather than actually working. This meant they were only entitled to the NMW when awake for the purposes of working and not when they were sleeping during their shift. If the Supreme Court decides to the contrary – that workers are entitled to the NMW during the sleep-in shift – this will obviously have huge implications for the care sector and the judgment is hotly anticipated.