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  • Overview

    When are my staff working and when are they not working?

    There have been two recently reported cases concerning what is deemed to be working time.  One concerned sheltered housing wardens, the other Spanish technicians.  But both will be of interest to care sector employers as they could effect how you pay your staff, whether now or after the introduction of the living wage in April 2016.

    Is travelling the same as working?

    The first case concerns employees who do not have a fixed place of work and who spend their working time travelling between different sites.  This could be particularly relevant for domiciliary care providers who employ carers to care for numerous different elderly and vulnerable people in their homes.

    The claimants were Spanish technicians who installed and maintained security equipment at various client sites.  Each technician used a company vehicle to travel from their homes to different sites and then return home at the end of the day. 

    Their employer did not regard the journey from home to the first assignment, and from the last assignment to home, as working time.  They treated the working day as starting from the time the technician arrived at their first assignment and ending when they left the last assignment.  The technicians brought a complaint that their journey from home and journey to home should be treated as working time for the purposes of the Working Time Directive.

    The European Court of Justice agreed and found that their working time started when they left home and finished when they returned home.  The court found in their favour because travelling was an integral part of being a peripatetic (travelling) worker and when such workers have to travel to a customer designated by the employer, they must be considered to be at work. 

    So UK employers of travelling employees now need to take into account these journeys when calculating their employees’ working time for the purposes of the Working Time Regulations (WTR) to ensure that they are still compliant with employees’ rights to:     

    •  work no more than an average of 48 hours a week (unless they have signed an op out);
    •  a daily rest break of 11 hours; and
    •  a weekly rest break of 24 hours. 

    This case may also be relevant when determining working time for minimum wage purposes.  The definitions of working time in the WTR and in the Minimum Wage Regulations are different, but this case could be cited in future litigation concerning what counts as working time for minimum wage purposes by travelling employees. 

    Some domiciliary care providers do not count time travelling between appointments, as well as the journeys from home and to home, as working time for minimum wage purposes and so only pay employees for the time spent providing care.  But if an employee’s working time for minimum wage purposes is subsequently deemed to include time spent travelling, then those employees may not be receiving the minimum wage. 

    My view is that it is only a matter of time before we have a ruling that time spent travelling between appointments should count as working time for minimum wage purposes and that this European case as another small step in that direction.

    Is a sleeping worker working?

    The second case is the latest in a series of case about whether workers who are ‘on call’, that is not actively working, and even asleep, were entitled to be paid the minimum wage during that time.  This case would be of interest to all employers who have staff on-call during the night. 

    The claimants were sheltered housing wardens in accommodation units for vulnerable people.  Their core hours were 08:30 to 17:30 Monday to Friday.  On four nights a week the claimants were required be in their tied accommodation units throughout the night and to respond if the central alarm system was activated.  They were entitled to claim time off in lieu or overtime payments if they were called out during the night, which rarely occurred. 

    The claimants claimed that the time when they were on-call four nights a week was working time for which they were entitled to be paid.  The good news for employers is that the Employment Appeal Tribunal (EAT) ruled that this did not count as working time. 

    The EAT held that on-call hours would only count as working time where an employee is required to work throughout the night as part of their core contractual duties.  Examples include a nurse dealing with telephone queries during the night.  In these cases the employee is considered to be actually working throughout the whole period.

    However the EAT said this was an on-call case where the worker’s main job is separate from and is not carried out at the same time as the on-call period.  This category is likely to include jobs where the workers are required to sleep on the premises, such as a housekeeper.  In these cases the worker is deemed to be working only when the worker is awake for the purposes of working.

    So there’s an easy distinction to put into practice! But joking aside, it does give some guidance to employers of the types of scenarios where employees who are on-call will not be able to claim that the time should count working time for minimum wage purposes.  Hopefully future cases will add more clarity to this guidance.

    If you would like to further discuss any information detailed above, please contact Associate Ben Stepney from our Employment team.

    First published in January 2016 by Caring UK.

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