Travel and on-call time and the minimum wage

Author: Darren Newman

Darren Newman

Travel time and on-call time are treated differently for the purposes of the national minimum wage and the working time legislation, as consultant editor Darren Newman explains.

Some confusion has been caused by the recent European Court of Justice (ECJ) case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another [2015] IRLR 935 ECJ. The ECJ held that workers with no fixed place of work were "working" when travelling to their first assignment in the morning and travelling back home again at the end of the day. However, contrary to some reports, the case does not have anything to do with how much people are paid when they are travelling to and from work - as the Court makes explicitly clear in its judgment.

How much an employee is paid - and for what - is primarily a matter of contract. There is no obligation on an employer to pay an employee for each hour of work. For example, many employees work unpaid overtime. There is no doubt that it counts as working time, but that does not mean that they have to be paid for it. What matters is what the contract says.

The only law we have on how much an employee is paid is the National Minimum Wage Act 1998 - with most of the detail now set out in the National Minimum Wage Regulations 2015 (SI 2015/621). But the law on the national minimum wage does not require each hour of work to be paid at a particular rate. It requires that the average hourly rate of a worker should be at least the level of the national minimum wage. So if an employee works for 30 hours in a week and then does 10 hours of unpaid overtime, that is not a problem provided that his or her weekly wage is at least 40 times the minimum wage.

It is important, however, to distinguish between working time for the purposes of the Working Time Regulations 1998 (SI 1998/1833) and working time for the purposes of the national minimum wage. The ECJ decision in Tyco affects only the Working Time Regulations 1998; travel time is dealt with by the National Minimum Wage Regulations 2015 and specifically excludes the journeys to and from home dealt with in Tyco.

There is another area in which the definition of working time for the purposes of the Working Time Regulations 1998 and for the purposes of the minimum wage is starkly different. The ECJ has consistently held that "on-call" time spent by a worker at the workplace will count as working time even if the worker is allowed to sleep when not actually being called on to do work. However, when it comes to the National Minimum Wage Regulations 2015, reg.32 deals specifically with on-call time. It provides that when a worker is required to be available at or near the place of work - but not at home - the time counts towards overall working time. However, it then says that, even if the employer provides the employee with adequate sleeping arrangements, the time counts only when the worker is "awake for the purpose of working". So time spent asleep, while counting for the purposes of the Working Time Regulations 1998, will not count when it comes to the national minimum wage.

At least, not usually. In a number of cases the courts have found that this sleeping time exception does not apply because the worker is not on call at all, but is actually working through the night - even when inactive. The Court of Appeal found in British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) [2002] IRLR 480 CA that employees working on a 24-hour booking line were working when they were at home waiting for a call, even if there were relatively few calls overnight. This led to a line of cases culminating in Esparon (t/a Middle West Residential Care Home) v Slavikovska [2014] IRLR 598 EAT, in which the Employment Appeal Tribunal (EAT) held that a nurse required to work sleep-over shifts was in fact working for the whole of each shift even when she was asleep.

The distinction that the EAT has drawn in such cases is between someone who may be needed to do some work and is asked to sleep over "just in case" and someone who is specifically employed to be on the premises for a period of time and who is therefore working just by being there. In the latter case, the exception for time spent sleeping will not apply and the whole shift will count towards the worker's overall working time.

This is not an easy distinction to draw. In Shannon v Rampersad and another t/a Clifton House Residential Home [2015] IRLR 982 EAT, the EAT has taken a rather more restricted view of what counts as working time for the purposes of the national minimum wage. Mr Shannon lived in a studio flat above a care home. He was employed by the care home as an "on-call night care assistant", which required him to be in the flat between 10pm and 7am and available to assist other staff on duty if needed. The issue was whether or not he was entitled to be paid for that time, irrespective of whether he was called on or not.

In Esparon, a key factor was that the employer needed to have an employee on site to comply with regulatory requirements. In Shannon, however, the EAT did not regard that issue as decisive and it was outweighed by the fact that the employee was called on only rarely during the night to do any actual work. It held that, when not specifically called on, he was not working. It is worth mentioning that the employee was claiming back pay of just under £240,000, which may have struck both the tribunal and the EAT as quite a lot for someone who was basically employed to sleep on the job.

With the projected increases in the national minimum wage and the introduction, in April 2016, of the national living wage for those aged 25 and over, many workers will find their average hourly pay to be nearer the statutory minimum than it once was. The issue of which hours have to be counted in working out that average is therefore likely to take on even greater significance. Expect more cases, drawing even finer distinctions, in the future.

perspective@xperthr.co.uk