Walton v Independent Living Organisation [2003] EWCA (Civ) 199

Care worker – minimum wage – independent living

This was an appeal against decisions by the Employment Tribunal and the Employment Appeal Tribunal, dismissing W’s claim that she had been paid less than the national minimum wage.

The Independent Living Organisation (ILO) provided carers for people who, because of their age or disability, needed assistance to maintain their independence and remain in their own homes rather than being placed in a residential home. W was a carer who was allocated to a charge, E, who suffered from epilepsy and had fits on a regular basis. She was a relatively easy client who needed a minimum of supervision. She could attend to her own needs i.e. she could feed herself, tidy her room, attend to her personal hygiene, and spent most of her time watching television and doing jigsaw puzzles. She usually retired between 9.30 and 10 pm and slept through the night. W was responsible for her washing, ironing, shopping, preparation of meals and medication.  W worked three days on and four days off. She accepted that the time spent on carrying out tasks for E was less than seven hours a day.  W had free accommodation and meals, but she still had the expense of maintaining her own home. When not providing a service to E, she could please herself as to what she would do, but she was required to be on the premises in case E required assistance.

The issue on appeal was whether W was engaged in ‘unmeasured work’ within reg 6 of the National Minimum Wage Regulations 1999 (i.e. any other work that is not time work, salaried hours work or output work including, in particular, work in respect of which there are no specified hours and the worker is required to work when needed or when work is available) rather than ‘time work’ within reg 3(a). ‘Time work’ is defined by reg 3(a) as work that is paid for under a worker’s contract by reference to the time for which a worker works.

W’s statement of terms and conditions stated that her pay would vary according to the assignment undertaken and that this might be at an hourly, daily or weekly rate; that her hours of work would vary according to the assignment, and that there was no guarantee of continued work each week, nor was there an obligation to provide E with a minimum number of hours in any day or week.

W was paid £31.40 per day. W argued that although she was not at times physically working, she was under contract to be mentally alert to the needs of Miss Jones. She was as much carrying out work during the time she was at Miss Jones’s home as a night watchman would be when relaxing or a nurse when having a cup of tea off-ward. She claimed that that sum of £31.40 should therefore be divided by 24 giving an hourly wage of £1.31, which was below the national minimum single hourly wage rate under the National Minimum Wage Act 1998 and National Minimum Wage Regulations 1999.

The ILO submitted that that the question as to whether W was paid by reference to the time for which she worked or by reference to something else was a question of fact and that W was not carrying out time work as she was not paid ‘by reference to the time for which a worker works’. The ILO further submitted that the daily rate should therefore be divided by 6.83 hours, which was the amount of time which W agreed she required on average for the tasks she carried out for E, giving a wage per hour of £4.60.

The Court of Appeal held that the correct approach was to look at all the facts including the type of work that was involved and then to ascertain whether the worker was paid by reference to the time for which the worker worked or by reference to something else. That was a decision which was for the Tribunal to make.

In the present case, the Tribunal decided that W was not paid by reference to the time for which she worked. There was an evidential basis for that decision and it would not be right for the Court to reject that finding.

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