There was a recent appeal against an Employment Tribunal decision, which raised the question of the correct approach to determining what hours are to be paid at the minimum rate of the National Minimum Wage when averaged with other working hours.
In this case the Claimant claimed she should be paid for the following:
1. The time during which she was sleeping in the home of 3 service users who she might have to attend to during the night (although, as things turned out, she did not). She claimed she was entitled to be paid, at the rate of National Minimum Wage for the eight hour sleepover, more than the £40 per week which she was paid by her employer, which was plainly less than the National Minimum Wage at the time if calculated on an hourly basis.
2. The time spent travelling during the day between an assignment to care for one service user and the next assignment to care for another. The Claimant claimed that she was entitled to be paid the National Minimum Wage in respect of time spent travelling between service users’ homes.
3. The Claimant’s third claim was that she was paid the various sums which had been approved by the Tribunal Judge, but the Respondent i.e. her employer claimed to offset what it is said was an overpayment of wages. That extinguished the payment of £214.10, which otherwise would have been due.
Conclusion:
It was held that the Claimant should have been paid for the overnight sleepovers she did. The Claimant was entitled to have the time she spent doing sleepovers included in the overall calculation of the national minimum wage.
It was also held that travelling time is time work, except where incidental to the duties being carried out and the time work is not assignment work. For example, if the Claimant was travelling from home to the assignment. It is clear that if the work which the Claimant was doing was properly to be regarded on the facts as “assignment work,” the travelling time which she spent should have been remunerated.
In terms of the third claim, it was held that the Tribunal was wrong in overlooking the impact of section 89 of the Employment Rights Act, on the basis of which there was no overpayment. If an employee does not have normal working hours under the contract of employment in force in the period of notice, the employer is liable to pay the employee for each week of the period of notice a sum not less than a week’s pay.
