EAT National Minimum Wage – An Employment Tribunal dismissed a claim to be paid National Minimum Wage (a) for time during which the Claimant was sleeping (‘sleepovers’, as required by her contract) in the home of 3 service users to whom she might have to attend (although, as things turned out, she did not do so in fact); (b) for time spent travelling during the day between an assignment to care for one service user and the next assignment to care for another; and (c) set off against the Claimant’s otherwise justifiable claims an overpayment of wages said to have occurred. It also held that the sleeping arrangements provided for the Claimant in relation to her ‘sleepovers’.
It was held in error in respect of each of (a), (b) and (c). As to (a) the Tribunal here failed to apply the appropriate authority, that of Burrow Down Support Services Ltd v Rossiter, had failed to recognise that on the evidence before it that the Claimant was required to work, that this was and could only in the circumstances be ‘time work’, such that Regulation 15(1) and 15(1A) were not applicable at all, and that it was irrelevant whether any activity was actually performed. As to (b) the Tribunal had failed to deal with whether the Claimant was travelling between assignments: on the facts, there was only one answer to this, which favoured the Claimant. As to (c) the Tribunal had overlooked s.89 of the Employment Rights Act, on the basis of which there was no overpayment.
Langstaff P J
[2013] UKEAT 0128 – 13 – 1907
Bailii
England and Wales
Employment
Updated: 02 November 2021; Ref: scu.517538