In Whittlestone v BJP the Employment Appeal Tribunal has taken another look at an issue which seems to recur from time to time – are workers entitled to minimum wage for hours spent asleep? Ms Whittlestone worked as a home care for an agency. By day she visited a number of service users at home for 20 minute “shifts” to attend to their needs, travelling between them by bus – nearly always without having time to return home between them. She was not paid for travel time. She had no set working hours, but worked as needed to carry out the number of visits allotted to her. She also slept over for eight hours overnight, when required, at a house occupied by three disabled adults for an additional fixed fee of £40 a week. As she appears to have slept over at least two nights a week this was well under the minimum wage. She resigned, giving a month’s notice and during her notice period she was given markedly less work that was the norm – which had been at least 50 hours a week on average before she handed in her notice.
She made a claim to be paid the minimum wage for the sleepovers, for her travel time and to recover deductions made from her final pay for alleged overpayments. She failed in the Employment Tribunal, but succeeded in the Employment Appeal Tribunal on all three claims:
- With regard to the sleepovers, it was irrelevant that she had never actually had to attend to any of the occupants of the house overnight – in this case her very presence in the house amounted to work – her job was to be there.
- Regarding the second aspect of the claim, the Tribunal had failed to understand that the work being done was assignment work, and that therefore she was entitled for be paid for the time spent travelling between assignments.
- With regard to the overpayments, taking into account the rules for calculation of notice pay for those without normal hours of work under section 89 of the Employment Rights Act, she had not been overpaid, and so the employer had not been entitled to make any deductions.
This is a notoriously tricky area, and the Honourable Mr Justice Langstaff (President of the Employment Appeal Tribunal) remarked that terms such as “on call” and “core hours” could be misleading and made it clear that employers and their advisers need to get back to basics and look at the actual wording of the regulations – and even then it can be difficult to decide what should be paid and what should not. He further noted that the Tribunal may have fallen into error because it had not had the benefit of the assistance of qualified lawyers presenting the case to it.
Thus the cases, as I shall show, note that where a person’s presence at a place is part of their work the hours spent there irrespective of the level of activity are classed as time work. Difficult cases may arise where a worker is obliged to be present at a particular place. That presence may amount to their working. Conversely it may not.
The President concluded by recommending that the parties should resolve the calculation of the actual sums due to Ms Whittlestone by conciliation or mediation. They could not be calculated then and there, as the facts were not available to him.