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Paying employees for being available (whether asleep or not) and travel time between assignments
The issue of whether the national minimum wage (NMW) applies to workers who are allowed to sleep on the job has often caused tribunals difficulties.

Regulation 15 of the National Minimum Wage Regulations 1999 specifies that work includes time when a worker is available at, or near, the place of work in order to carry out work, unless the worker lives nearby or is entitled to be at home. It goes on to say that workers given sleeping facilities at work will only be entitled to be paid the NMW when awake and performing their duties.

However, the Employment Appeal Tribunal (EAT) has reconsidered this issue and provided guidance in a recent case [Whittlestone v BGP Support Ltd.]

The claimant was a care worker who had no fixed hours, although her contract referred to “normal working hours”. She was required to undertake “sleepovers” between 11pm and 7am as part of her duties. This entailed potentially providing physical care for three young adults who suffered from Down’s syndrome. A bed and bedding was made available for her use at the house occupied by them. In reality she was never called on to provide care during these nights.

She was also required to travel between various client houses during the day and, in addition to claiming the NMW for the sleepovers, she claimed she should be paid while doing this travelling, which was always by bus.

The case went to an Employment Appeal Tribunal. Both employer and employee agreed that the NMW applied to her job, but the central issue, was whether the sleepovers constituted ‘time work’ or not within the meaning of the Regulations. In this case, the hours the claimant spent engaged in her day work and the sleepovers, the EAT thought, should be categorised as time work. The EAT held that the sleepovers were ‘time work’ because:

• the evidence showed there was an agreement between the employer and the employee that she would work during this time;
• she would have been disciplined if she had not been present throughout the night (she could not, for instance, go out for a meal, unlike employees “on call” from home);
• the fact that her physical services were not called on during the night was irrelevant, since her job was to be there.

The next question was whether the claimant was entitled to be paid for the time she spent travelling between her assignments during the day. The EAT decided she was. The EAT concluded that original tribunal had simply been wrong to reject this claim and so that decision was overturned. Each visit to an end user should properly be viewed as an assignment, so travel time to each assignment was ‘time work’ and the claimant was entitled to be paid for that time.

This case is important because it clearly states that employers need to focus on the purpose of employees’ presence at a workplace. If, as in this case, it is to be available to provide a service, they are working for the purposes of the NMW, even if not called on to work. The fact that the employee may have been asleep, rather than engaged in physical or mental activity, was irrelevant in considering whether the NMW applied. It is also important to note by those businesses whose staff travel between assignments to make sure that they are paid properly for that time.
Posted on 19 Nov 2016

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