Following last year’s European Court of Justice (ECJ) ruling that travelling time counts as working time, a care worker has recently received a £1,250 pay-out from her employer.
The ECJ ruled that, for workers who have no fixed place of work such as gas fitters or carers, the first journey of the day from home to the first customer, and the last journey of the day from the customer to home should now be counted as working time, for the purposes of the Working Time Regulations (WTR).
If, as an employer, you pay your workers above the National Minimum Wage (NMW), the ECJ decision will only have an impact where the WTR are concerned, as you will need to ensure workers are receiving adequate rest breaks. If you only pay the NMW, or very close to it, the ruling could have a more severe financial impact if you are found to be in breach of the NMW legislation. It is important to note that the new National Living Wage (NLW) is part of the NMW regulations and will also be impacted by the ruling.
The judgement will affect some industries more than others. The clearest example is the care sector, which is known for not paying much more than the NMW to workers. You may find yourself in breach of the NMW regulations if you do not pay workers for travel time to their first client of the day and back home after their last client of the day, as it is likely the workers’ average hourly rate will be reduced and could fall below the NMW.
In the case of the care worker, above, it was stated that the employer had been paying slightly above the NMW for the time the employee spent at care appointments, but that, when spread across the month across all hours – including travel time – the wage fell below the NMW.
This decision only affects those workers with no fixed place of work. It does not mean that commuting time to a fixed workplace can count as working time. To stay compliant, if your workers have no fixed place of work you will need to consider things such as:
- Asking workers to opt out of the maximum working week
- Ensuring workers are able to take their daily rest breaks
- Whether contracts of employment need to be amended
- How workers’ remuneration will be affected
Failure to pay the NMW constitutes an unlawful deduction of wages; a claim which workers can take to tribunal to force their employer to pay any money owed. It also worth noting that the government are cracking down on businesses who fail to pay the NMW by naming and shaming them, as well as imposing financial penalties.
Please contact Gemma Chapman
or Vicky Webber
in the HR Consultancy team for further information.