Carer’s Travel Time and the National Minimum Wage (NMW)
We are a care provider and employ many people as carers. We pay £6.58 per hour (just above the minimum wage) for the time they actually spend providing care at client homes. Our standard employment contract describes each visit as a “shift” and a typical working week comprises about 50 “shifts” between the hours of 7.00am and 10.00pm in accordance with a weekly rota. There is normally little or no prospect of carers going home between visits. As is the norm in our industry when they have to travel straight from one “shift” to the next they are not paid for the time spent travelling.
One of them is threatening to take us to an Employment Tribunal to be paid the national minimum wage during the time she has spent travelling between client homes. We have told her that she has no chance of winning and if she does not like it then she knows where to go. (We would probably not sack her; just give her a lot less hours).
Peter Replies:
By law, no one over the age of 21 should be paid less than £6.53 an hour, so to pay only for “care minutes” with a client is going to be illegal. HMRC have ruled on this practice explaining such underpayment does not “cover the working period from a national minimum wage (NMW) point of view”.
The Employment Appeal Tribunal have also recently ruled that a carer is entitled to be paid the national minimum wage for the time spent travelling between clients homes because they are carrying out “assignment work” for the purpose of national minimum wage legislation and was, therefore, entitled to be paid for travelling time.
If you fail to meet NMW obligations, you will be at risk of Employment Tribunal claims, civil penalties, criminal sanctions and being publicly named and shamed by HMRC.
It is highly unlikely that the 5p per hour above the minimum wage will allow you to assert that your carers are paid above the NMW for all their working hours. You therefore need to address this as a matter of urgency and avoid doing anything like reducing her hours as this would constitute an automatically unfair dismissal for asserting a statutory right.
We recognise that payment for travel time is a particularly hot issue. The significant downward pressure on local authority fees and the fact that commissioners often only pay for care time (not travel time) will make any increase in staff pay extremely difficult for care providers. However, it is important to remember that these factors have no relevance for NMW purposes and won’t provide a defence to any potential liability.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for specific advice.
