Mark Shulman, Consultant Solicitor at Keystone Law

NATIONAL MINIMUM WAGE
As readers will be aware, the NMW is concerned with the statutory minimum pay in prescribed circumstances and so for anything else, the worker's contract will govern the position. This month's round-up looks at cases on both NMW entitlement and contractual entitlement for workers who are required to sleepover.

First, we consider how the recent case of [Whittlestone v BJP Home Support Limited]() UKEAT/0128/13/BA is likely to affect the care sector and hospitality sector where sleeping-in overnight is a common occurrence.

In Whittlestone, the Claimant was employed to provide care services to clients  ("service users") and was paid at the rate of £6.35 per hour under her contract for the time which she actually spent providing care at the home of a service user. That rate was calculated for time spent from the moment of arrival at the service user's home to that of departure (which period constituted a shift). She was also required to undertake on-call shifts.

*The NMW Regulations
*Regulation 15 of the National Minimum Wage Regulations 1999 makes provisions in relation to time work. The relevant part states that:

"(1) Subject to paragraph (1A) time work includes time when a worker is available at or near a place of work for the purpose of doing time work and is required to be available for such work except where:

(a) the worker's home is at or near the place of work and;

(b) the time is time the worker is entitled to spend at home.

(1A) In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours permitted to use those facilities for the purpose of sleeping shall only be treated as being time work when the worker is awake for the purpose of working.

(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 questions for the ET in Whittlestone were:

* whether the Claimant was entitled to payment for "sleepovers". She claimed she was entitled to be paid at the NMW rate for each 8-hour sleepover which was more than the £40 per week contractual payment which she received from her employer; and * whether payment was due for travel time between assigned visits to service users.

The ET dismissed both claims.

*Sleepovers
*With regard to the sleepovers, the ET found that the overnight work was separate from and different to the Claimant's core or normal daytime work. She had agreed to carry out the additional overnight work for a fixed fee of £40. Throughout her period of employment she was never called upon to actually perform any work during the overnight period. She effectively slept throughout the overnight shift. The ET found that the Claimant's overnight shift accordingly fell within Regulation 15(1A) of the NMW Regulations. Accordingly time during the hours when the Claimant was sleeping over could only be treated as "time work" when she was awake for the purposes of working.

The EAT disagreed. Whilst it saw no difficulty with the principle that a distinction was to be drawn between those people who by being present are doing the job they are employed to do and those for whom that is not the case, there was no proper distinction to be made between "core hours" and other hours in the contract as mentioned in some previous case decisions. Even where a contract can be classified into "core" and "non-core" hours, they would equally be working hours: it is not only core hours which attract the NMW.

The first question for any ET would be: "Is the claimant working during the hours for which he claims?" Whether a person was working had to be determined upon "a realistic appraisal of the circumstances in the light of the contract and the context within which it is made". In Mrs Whittlestone's case, the EAT's view was that there could have been no answer other than that it was work. That was because the evidence was that there had been agreement between the employer and Mrs Whittlestone that she would work; she would have been disciplined if she had not been present throughout the period of time. She could not for instance "slip out for a late night movie or for fish and chips". The fact that her physical services were not called upon during the night were irrelevant since her job was to be present at the service users' home.

Accordingly, a finding was substituted that the Claimant was entitled to have the time she spent on sleepovers included in the overall calculation of the national minimum wage.

Travelling
On the issue of travelling, the ET ruled that the travelling was purely incidental to the duties carried out in the course of the Mrs Whittlestone's work and therefore could not be treated as being "time work". The ET found that she was not carrying out any care work or care duties during the time when she was travelling between one service user's premises and the next. Mrs Whittlestone was simply transporting herself from one set of premises to another and effectively from one shift to the next.

Again, the EAT disagreed. If the work which the Claimant was doing was properly to be regarded as "assignment work" the travelling time which she spent should have been remunerated. Travelling time was "assignment work" as Mrs Whittlestone was on a rota and obliged to visit each service user in turn during the course of the day and there inevitably was travelling time between them. That time was within the general control of the employer who was arranging the assignments. Therefore, the Claimant was entitled to be paid for travel time, subject only to any argument that on occasions for which a claim was to be made she might not be doing time work because she had gone home or was travelling from home to the assignment (exceptions under Regulation 15).

**Comment
The EAT could not undertake the necessary calculation of pay due in respect of the Claimant's sleepovers because "…it involves considering the pay which she received for her other hours of work which was in excess of the national minimum wage and striking the appropriate balance" Thus it can be seen that the decision in Whittlestone may not in fact prove to be a significant issue for employers where their employees are paid in excess of the NMW for "standard" hours. This is because notwithstanding any time spent on sleepovers, it may work out that overall, the employer has satisfied its obligations under the Regulations within the relevant pay reference period. Whilst the NMW Regulations are both complex and technical, to establish payment of the NMW for time work, it is necessary to follow the steps below:

1. Identify the pay reference period.

2. Calculate the total remuneration received in the pay reference period by:

(i) identifying the total gross pay (including all pay and benefits that count towards the NMW); and

(ii) deducting any permissible payments or deductions that reduce NMW pay.

3. Then determine the hours that should be counted during the pay reference period by:

(i) establishing what type (or types) of work the worker does (e.g. "time work" as defined); and

(ii) identifying the applicable hours that will count for each relevant type of work.

4. Calculate the worker's hourly rate of pay: divide the total pay received in the pay reference period by the hours that should be counted during the pay reference period.

5. The result should enable you to ascertain whether the NMW has been paid for those hours.

CONTRACT- PAY
Even where the NMW is not directly in point, there may be cases where a contractual claim can be made for sleepovers.

In [Carter v Prestige Nursing Ltd]() UKEAT/0014/12/ZT, the Claimant was a carer in a business concerned with homecare services by the provision of live-in carers. Ms Carter was such a carer who lived with the service user for 2 weeks and then had 1 week off. While living with the service user, she was expected to be awake from 6am until 10pm, with 3 hours off during that time to do as she wished. From 10pm until 6am the Claimant was required to be at the service user's home, but could be asleep in her own room. Initially the Claimant was paid a day time rate and a night time rate. Subsequently, the night time rate ceased, but the day time rate was increased to compensate. After that variation, the Mrs Carter claimed no payment for the night hours.

It was common ground between the parties that Mrs Carter was a worker for the purposes of the Employment Rights Act 1996. She did not allege a breach of the NMW. Her claim was under the Employment Rights Act 1996 that there had been unlawful deductions from wages relating to the night hours, but the ET rejected her claim. The Claimant appealed arguing that she was entitled by her contract to be paid at night effectively the same contractual rate which she was paid during the daytime.

The EAT found that the ET had correctly identified the issue i.e. "Was the Claimant at work and entitled to be paid her normal hourly rate from 10pm-6am?" The ET had thought not on the basis of [South Manchester Abbeyfield Society v Hopkins]() [2011] IRLR 300 (a case under the NMW, but which had been applied by the ET by analogy). In Abbeyfield a Housekeeper and Deputy Housekeeper had claimed that the overnight hours they were on-call, were hours during which they were "at work" and so they were entitled to be paid for those on-call hours at the rate of the national minimum wage. The EAT in that case decided that by virtue of Regulation 15(1A) of the National Minimum Wage Regulations (see above), they were only entitled to be paid for those on-call hours when they were awake for the purpose of working. The ET was satisfied that had Mrs Carter asked Prestige, they would have paid her for any time that she was woken in the night to tend to the service user's needs. In the ET's view, there was therefore "no breach of the National Minimum Wage Regulations" as Mrs Carter had been asleep during all of the applicable night hours.

On appeal to the EAT, the Claimant suggested that the ET should have followed Anderson v Jarvis Hotels [2006] EAT/0062/05. Anderson concerned a guest care manager at a hotel required to sleep over several nights each week. The reason for that requirement was primarily to deal with emergencies such as fire and flood. The relevant term of the contract was found to be that he "was entitled to be paid at an hourly rate for those hours that he was, in furtherance of his duties under the contract, working". The EAT in that case decided that the manager was clearly subject to the employer's requirement throughout the sleepover periods. The purpose of the sleepover was in order to satisfy health and safety and fire regulations. The requirement for the manager's presence was of such significance that he had previously been disciplined for leaving the hotel during a sleepover period. The manager had to be in the hotel to meet the employer's needs, which he met throughout each sleepover. Being present at the premises was what the manager was primarily employed to do during sleepover periods and that accordingly was his 'work'. He was entitled to paid accordingly.

The EAT agreed with the submission on behalf Prestige Nursing that the ET ought to have made findings as to the actual terms of the contract which the Claimant had with Prestige concerning payment for night hours. The case advanced by Prestige was that the Claimant was employed on the terms of its own rates as advised to her from time to time. If that was correct, then the reasoning in Anderson (i.e. the question of whether the Claimant was in fact actually "working" during night hours) had no application. The Claimant's case was on the basis that there was a contractual term, (explicit or by necessary implication), that she would be paid a working rate at night.

It is only if the Claimant was not paid in accordance with the terms of her contract that her claim for unlawful deduction from wages could succeed (as the case was not being put under the NMW Regulations). The matter was therefore remitted to a different ET for relevant findings to be made on these issues.

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator.