The worker was employed as a carer for a lady who would need support at unpredictable times, but on average she would need some 6 hours’ care a day. Whilst at work, the claimant would stay with her patient for a full 24 hour day, but, except when actually engaged in giving care, she was free to do as she wished. The National Minimum Wage Team said her that daily pay should be divided by 24 to give her hourly rate, and her employer contended that it should be calculated on the average time attending her patient.
Held: The Regulations distinguished between ‘time work’ and ‘unmeasured work’. If her duties did not fall within the time work definition, the basis became unmeasured. Regulation 3(a) could not refer to any payment including a reference to time, since this would make 3(b) unnecessary. Accordingly 3(a) concerned the work which was to be paid for. This is a factual question for each case. In this case she was not paid by reference to the time she actually worked. It was not therefore time work, but unmeasured work.
Judges:
Lord Justice Aldous The Hon Mr Justice Jacob Lady Justice Arden
Citations:
Times 27-Feb-2003, [2003] EWCA Civ 199, Gazette 01-May-2003, [2003] IRLR 469, [2003] ICR 688
Links:
Statutes:
National Minimum Wage Regulations 1999 (1999 No 584) 3(a) 3(b), National Minimum Wage Act 1998
Jurisdiction:
England and Wales
Citing:
Appeal from – J M Walton v The Independent Living Organisation Ltd EAT 21-Mar-2002
The applicant worked as a care assistant. She was required to be resident but worked shifts through the week. She appealed a finding that she was working ‘unmeasured time’ under regulation 6, asserting that it should have been judged to be ‘time . .
Cited – British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) CA 2002
The employers provided ‘bank nurses’ for nursing homes and other institutions on an emergency basis, including a 24 hour telephone booking service. At night employees were based at home. The ‘duty nurse’ would answered a diverted phone call and then . .
Cited – The British Nursing Assocation v The Inland Revenue National Minimum Wage Compliance Team EAT 8-Jun-2001
The applicants appealed a finding that their employees were workers within the regulations. The question related to whether bank nurses, who were available to be called on the telephone at home during the night, were working as they waited. The . .
Distinguished – Scottbridge Construction Ltd v James Wright OHCS 25-Oct-2002
The claimant worked as a night watchman, on 7 nights a week between 5pm and 7am. His principal purpose was to be available there to respond if an alarm was set off by an intruder. When not performing a specific task, he could do whatever he wanted. . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 07 June 2022; Ref: scu.179567
