276: Care workers paid National Minimum Wage for waiting and travel time
In settlement of an Employment Tribunal claim which has been ongoing since 2016, three homecare service providers have agreed to pay ten care workers the National Minimum Wage (NMW) for travelling and waiting time between care appointments (Harris and others v Kaamil Education Ltd and others).
The care workers looked after elderly and disabled clients in their homes, often making up to 15 visits in shifts lasting from 7am to 9pm, including travelling and waiting between appointments. Their salary was calculated in accordance with the time spent per resident. The time spent travelling and waiting between appointments was unpaid which often resulted in the workers receiving less than £4 per hour. Backed by Unison, the care workers brought claims for unlawful deduction from wages, arguing that all time spent travelling and waiting between care appointments should count as time worked for the purposes of the NMW Regulations.
The care workers’ claims have now been settled by consent with the homecare service providers agreeing to pay NMW for travelling and waiting time. These backdated payments amount to around £100,000 and had to be paid within 21 days. At the request of the claimants, the method used to calculate the value of their claim is appended to the consent order as a useful guide for similar claims, although it is also noted that the employers did not put forward any alternative method of calculation.
This case is not binding on future cases, and it is important to note that the Tribunal did not give any legal opinion on whether the NMW legislation applied to travelling and waiting time in these particular circumstances. However, travel time should normally be treated as working time for NMW purposes unless it is between the worker’s home and their normal place of work. Waiting time should also normally be paid if a worker is available for work and required to be at work, although there are some exceptions such as sleep-in time. It remains to be seen whether this calculation method will be widely used, particularly as it underestimates the claims in some areas, for example, gaps between appointments exceeding 60 minutes were disregarded, and off-peak travel times were used even though some of the claimants travelled at peak times.