In last month’s BPE Employment update (if you missed it, check it out here) I prepared an article about a Spanish case that has been referred to the European Court of Justice to consider whether travel time (i.e. time spent travelling to a client appointment and travelling home) counted as ‘normal working time’ and therefore, whether it should be paid. Whilst Spain lay in wait to find out whether David De Gea will actually move to Real Madrid or not - oh, and the outcome of this case - this question has now been brought before the domestic courts at the expense of MiHomecare.
MiHomecare is the fourth largest home-care services company in Britain, employing around 4,000 staff in 38 branches. Caroline Barlow worked for MiHomecare for four months and during her employment - we should add, in accordance with her job description - she was required to travel extensively across the South West of England to attend to her clients various needs. Travel was an integral part of Ms Barlow’s job and MiHomecare picked up the cost of Ms Barlow’s petrol expenses. Ms Barlow was paid £7.68 per hour for her services which on the face of it, was a good deal over the National Minimum Wage of £6.50 per hour.
So what was the problem? Well, aside from the fact that Ms Barlow only had an average of 15 minutes to tend to her client’s various and sometimes complex needs, her appointments were anywhere between a 15 minute and a 90 minute drive from each other. Ms Barlow claimed that this meant that she was typically on the road for many more hours than she was actually being paid for. Ms Barlow claimed that if she included travel time, she regularly worked 12 hour days, but was only being paid for 7.5 of them. This meant she was being paid less than the minimum wage.
Understandably, MiHomecare did a bit of investigative work and commissioned a report to work out what their liability might be if Ms Barlow’s challenge was right. And, in a story line as predictable as the plot of an episode of Midsummer Murders, the report was leaked. The report demonstrated that if Ms Barlow succeeded, then just one of MiHomecare’s branches could face a liability of as much as £80,000 over three years.
883,000 people are estimated to be receiving homecare in the UK. Half a million people are estimated to be employed in the care sector and 6.4% of the total work force in England are employed in the adult social care sector. These staggeringly high figures demonstrate the potentially huge implications that this Tribunal claim will have upon the industry and indeed any industry whose workers are hourly paid at or close to the minimum wage and who are required to undertake significant travel as part of their job.
What does this mean for you or your business?
Nothing, if your staff are not required to travel or you pay a salary over/above the minimum wage and travel time is paid. But, if you pay staff hourly on or near the National Minimum Wage and they are required to travel to appointments as part of their job but are not paid for that travel time, then the outcome of this case could have a significant impact on the employee’s working hours and their rate of pay.
What do you need to be doing now?
Keep a watchful eye on the outcome to the Spanish case and this one in this developing area of the law. Business owners who think they may incur financial liabilities as a result of this case should have a contingency in place if travel time is found to be paid working time. Future and historic liabilities could be high. Contact any of the employment team if you have any further information.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.