National minimum wage – ‘travel time’ win for home care workers

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In our last newsletter we reported on some of the ‘headline grabbing’ reasons given by employers for not paying the national minimum wage (NMW) and commented that the mundane reality is that many breaches are due to administrative, payroll or time-recording failures (e.g. failing to record time ‘on call’ or driving between work appointments and visits). To illustrate this point, HMRC has recently ruled that around 3,000 home care staff should receive a share of £600,000 in unpaid wages after their employer had not paid them for time spent travelling between care visits. Travel time between visits and appointments (as opposed to commuting time) will almost always be subject to NMW requirements.

In a related case brought under the NMW Regulations, the Employment Appeal Tribunal has confirmed that where a care worker is required to work a ‘sleep in’ night shift at the employer’s premises but only to be available in an emergency, the employee must still be paid.

It is important to have sound systems in place to avoid the risk of inadvertent failure to record working time. Employers that breach the NMW face penalties of up to £20,000 as well as the risk of being publicly ‘named and shamed’. The Government also plans to legislate in the new parliamentary session so that employers can be given penalties of up to £20,000 for each individual worker they have underpaid. This will mean, for example, that if an employer underpays 10 workers it could face penalties of up to £200,000.