Whittlestone v BJP Home Support Ltd (National Minimum Wage) [2013] UKEAT 0128_13_1907

Mrs Whittlestone (‘W’) was a care worker who was employed by BJP.  W was paid £6.25 per hour for the time that she spent at a patient’s home.

In addition to this, W worked during a ‘sleepover shift’ (from 11pm to 7am), which required her to stay overnight with three service users and provide care if they needed it, and she was permitted to sleep when this care was not required. W was paid £40 per week for working during these shifts, which was below the National Minimum Wage (NMW).

Following her resignation, W claimed:

a)     NMW for the time during which W was sleeping in the home of three service users (during ‘sleepover shifts’);

b)     NMW for the time spent travelling during the day between shifts with different service users; and

c)     payment in compensation for the unlawful deduction of wages by the employer during W’s period of notice.

At first instance the Tribunal dismissed all three of these claims. However, those decisions were reversed by the Employment Appeal Tribunal (‘EAT’) on appeal.

In relation to claim (a), the EAT began by rejecting the reliance upon the decision in South Manchester Abbeyfield Society v Hopkins & Woodworth by counsel, on behalf of the Respondent employer. The EAT expressed concern at the distinction made between ‘core hours’ and ‘other hours’ in the contract within the aforementioned case, because even if a contract separates hours as such, all of the hours will still be working hours, and will all attract the protection of the NMW Regulations 1999. As the jurisdiction here is entirely statutory, and because this distinction does not appeal in regulations nor legislation, the issue was therefore not whether work is done within ‘core hours’ or not. Rather, the only distinction identified within statutory instruments was between that which was ‘time work’ and that which was not, but which might be deemed to be. Another danger using expressions such as ‘core hours’ was that applying them might involve unnecessary attention to any actual work done. Such a focus would be misguided, as the main issue here concerned whether or not something could satisfactorily be ‘time work’, and this question was a factual enquiry that involved a realistic appraisal of the circumstances, taking into account the contract and the context within which it was made.

When applying this to the facts of the case, W was found to be carrying out ‘time work’ for the purposes of the NMW Regulations 1999. First and foremost, there was clear evidence that there had been an agreement between W and her employer that W should carry out ‘time work’ during the specified period. This was indicated by the contract, both in its oral and written form. Also, given that not only were specific hours at a particular place required of W by the contract, but also disciplinary actions threatened if these provisions were breached, it was again apparent that this period must constitute ‘time work’. This was because it was evident that during ‘sleepover shifts’, W was very much at the disposal of her employer. And whilst W, during the ‘sleepover shifts’, had never had to attend to her three service users, this was irrelevant because a person’s presence at a place was deemed to be part of their work, irrespective of their levels of physical and mental activity during the hours spent there. The EAT therefore found that W was working throughout the entire period that she was present, regardless of whether she was asleep or not.

Regarding claim (b), the EAT began by outlining the law in Regulation 15 (NMW Regulations 1999):

(2)  Time when a worker is travelling for the purpose of duties carried out by him in the course of time work shall be treated as being time work except where:

(a) the travelling is incidental to the duties carried out in the course of time work, the time work is not assignment work and the time is time when the worker would not otherwise be working or;

(b) the travelling is between the worker’s home or an address where he is temporarily residing other than for the purposes of performing work, and his place of work or a place where an assignment is carried out.

The EAT argued that, when considering the schedule that W was operating by, it was clear that despite referring to each visit during the day as a ‘shift’, this did not equate W’s working arrangements with that of someone beginning work at their employer’s premises and returning home after an 8 hour shift. W was on a rota which required her to make certain visits over the course of the day, and this involved travelling between different service users’ homes. Despite the Employment Tribunal suggesting that this would not qualify as ‘time work’ because W was not carrying out any care work when travelling between homes, as the mode of transport and time taken were entirely at W’s discretion, and because W was permitted to do whatever she pleased if she had surplus time between shifts, the EAT rejected this. The EAT maintained that the time period during which W was travelling between service users’ homes was in the general control of the employer who had arranged the assignments. However it was found that where, for instance, C had surplus time between shifts and used this for ‘leisure time’, this would not qualify for ‘time work’ under the NMW Regulations 1999 (Regulation 15(2(b)). Otherwise travelling time, in the course of travelling between consecutive visits without down time, would count as ‘assignment work’, and would entitle W to be paid the NMW during these periods under Regulation 15.

And finally, the EAT relied upon Mr Morgan’s submissions (on behalf of W) when concluding that claim (c) had succeeded. At first instance, the Employment Tribunal agreed that a sum of £214.10 should not have been deducted, but no money was ordered to be paid by the Respondent to the W by the Employment Judge because:

 

“The respondent gave evidence to the effect that the claimant had been paid during her notice period for a total of 200 hours whereas she had in fact only worked 80.25 hours and had therefore been overpaid for 119.75 hours in the sum of £760.42 … The respondent is entitled to set off against that overpayment of £760.42 the sum owed to the claimant in the sum of £214.10.”

 

Mr Morgan declared that at first instance, the Employment Tribunal were wrong to accept the Respondent’s evidence, both for reasons of fact and law. Regarding reasons of fact, it was argued that the letter detailing how many hours W had worked before and after giving notice should not have been open to the Respondents to rely upon, as the sum issued in the letter was one that they had calculated themselves as being due to W. And legally, as Mr Morgan submitted, the Employment Rights Act 1996 provided that if an employee did not have normal working hours under their contract of employment in force during their period of notice, the employer would be liable to pay them no less than an average week’s pay (averaged over the 12 preceding weeks) for each week of the period of notice. As a result, W was entitled to be paid a sum which represented remuneration for a minimum of 50 hours per week.

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