Homecare workers: paid to wait for their next appointment

In a recent Employment Tribunal decision 9 homecare workers were awarded almost £70,000 in back pay because they hadn’t received the National Minimum Wage (NMW) for travel time and waiting time between care appointments. Since this decision, the trade union Unison has launched a campaign calling on homecare workers to claim payments for travel and waiting time. In a business where the profit margins are slim, paying homecare workers for travel and waiting time can quickly add up becoming a significant liability for the care sector.

What elements were considered working time for NMW purposes?

The judgment in Harris v Kaamil Education Limited was reached following agreement between the parties so there is no legal clarity on whether waiting time between care appointments should be paid at NMW rate. However, the Claimants in this case asked that their methodology for calculating travel time and waiting time be set out in the judgment “as a useful guide to similar claims arising in the care sector.” The following elements were considered working time for NMW purposes:

• Care appointment – the time each homecare worker spent providing care to a service user.
• Travel time between appointments of 60 minutes or less – the travel time was calculated using City Mapper and Google Maps and the postcodes for each service user as set out in the homecare worker’s rota. Calculations also took into account each worker’s mode of transport.
• Waiting time between appointments of 60 minutes or less – where travel had been undertaken, but there was also a waiting period after the travel time and before the next care appointment.

This case also took into account two judicial observations from an earlier case about waiting time between appointments. Firstly, that care workers should not be penalised if their employer rosters them inefficiently and secondly, that workers should be paid for gaps between appointments that are not long enough to allow them to return home and relax.

The methodology used to calculate working time was by agreement between the parties so will not be legally binding on other cases.

What should homecare providers be doing?

Homecare providers must ensure they are accurately calculating employee pay, taking into account travel between appointments and any time employees are waiting to work in line with NMW rules. Failure to do so could result not only in litigation, but providers could also face fines from HMRC in relation to breaches of the NMW rules. In taking over any new contracts, homecare providers should conduct proper due diligence to identify any historic back pay liabilities and, if required, seek appropriate indemnities to ensure that they do not have to bear the costs of historic liabilities. Lastly, in view of the comments made about rosters in the Harris case, providers may also wish to revisit rosters and review waiting time between appointments.

If you would like advice on any particular aspect of the above, please contact David Potter to discuss how we can help you.