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By Debbie le Quesne

Be warned: Appeals tribunal rules on sleepovers and travel

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As more and more caseloads are decanted from council social care departments into the private sector to help trim local authority budgets, once again it’s time to raise the issues of risks of not paying the minimum wage.

Like it, or hate, we now have to live with an Employment Appeals Tribunal ruling that time taken for domiciliary workers’ ‘sleepovers’ and travel time must be paid.

The case of Whittlestone v BJP Home Support Limited gives care providers a stark and timely reminder of the risks of not paying the National Minimum Wage (NMW).

The employee who brought the action was paid £6.35 per hour for the time spent attending to service users at their homes but she was not paid for travel time.

Neither was she paid at an hourly rate for sleepover shifts. She was permitted to sleep except when her services were required and was rewarded with a £40 payment for working from 11pm until 7am.

But the appeal tribunal ruled she should be paid, the judge deeming it was “working time” and it was irrelevant whether the care worker was asleep or not.

Effectively the National Minimum Wage regulations were breeched by the travel time/sleep time issues.

It should be noted, however, that her travel time from home to the first assignment and from the last assignment back home was not “time work” for the purposes of the NMW regulations.

When this case first came to light I said it had huge implications on the domiciliary sector.

Employers with individuals working under arrangements similar to the one in this case may wish to review the average hourly pay for their workers in light of what is, effectively, a new calculation.

The bad news: To dishonor this ruling might lead to expensive liabilities and care providers unsure of their position should take legal advice.

The care industry finds itself in ever-increasing financial difficulty and although I strongly uphold the fact that the minimum wage must be paid – and paid within this new criteria – I
fear for the viability of some community-based businesses. Doubtless costs will soar, more and more work is being hived off from local authority dom-care teams as they transfer into hospital discharge work or are made redundant, but fees paid by councils remain generally poor.

And for the future under this new tier of ‘regulation’? Someone once said that between the known and unknown there are “doors of perception”. I for one am struggling to find any door.

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