Getting pay right is not always straight forward. In recent years there have been many cases concerning holiday pay and entitlement for employees who are sick whether short or long term. This is not the only area where problems can arise though in establishing the correct interpretation of the law that regulates this area. Two recent cases which look at pay could have significant implications for employers and employees alike.
National Minimum Wage –Whittlestone v BJP Home Support Ltd – Employment Appeal Tribunal
Mrs Whittlestone was a care worker who was required to work shifts which in this case meant a series of visits to service users determined by rota. She was paid £6.35 an hour for the time spent providing care to the service user. Additionally, Mrs Whittlestone was expected to cover some overnight ‘on call shifts’ under threat of disciplinary action if she was not available for these. The pay for these ‘sleepovers’ which ran from 11.00p.m. to 7.00a.m. was £40 per night.
The case looked at two important issues that can arise in work of this type; pay for periods spent traveling to and from each service user and pay for the ‘sleepover’.
Mrs Whittlestone claimed that she should be paid the National Minimum Wage for travel between assignments other than at the start or end of the day and also for the eight hour period of the sleepover. The claim was not successful in the Employment Tribunal and she appealed.
After detailed consideration of the facts of the case and the relevant law the Employment Appeal Tribunal found that both the claims were successful.
When considering the travel the Judge stated that:-
“ the fact that the contract called each separate visit a ‘shift’ does not have the consequence that this was the same arrangement as if the Claimant had been starting work at her employer’s premises at the start of an 8 hour shift or thereabouts and returning home after. She was on a rota and obliged to visit each service user in turn during the course of the day, and there inevitably was travelling time between each visit.”
Accordingly she was held to be entitled to National Minimum Wage for this time.
The same conclusion was reached for the sleepover on the basis that:-
“The evidence was that there had been agreement between the employer and the Claimant that she would work; she would have been disciplined if she had not been present throughout the period of time; she could not for instance slip out for a late night movie or for fish and chips.”
The conclusion was again that National Minimum Wage was due for the period even though in fact the Claimant was never actually called upon to provide any services to the service users during the time she was sleeping. It was sufficient that she was at the employer’s disposal during the periods and required to be there.
Holiday Pay and Overtime - Neal v Freightliner Ltd – Employment Tribunal
It is widely accepted that all full time employees are entitled to a minimum of 5.6 weeks paid annual leave but what is not always so clear is how that week’s pay for the time taken off as holiday should be calculated. The calculation is relatively straightforward for employees who work the same hours each week but for those who do not have regular hours or work overtime it can be more challenging.
The case of Neal v Freightliner Ltd concerned an employee who had a ‘basic’ 35 hour week but who was also required to work overtime when necessary and who regularly did. His week’s pay for the purposes of holiday was worked out with reference to the 35 hour basic rate which was less that his usual working hours each week and he claimed a higher amount in the Employment Tribunal.
His claim was successful. While acknowledging that voluntary overtime was excluded from the calculation of a week’s pay, the Tribunal found that:-
“As the claimant’s duties were to perform his contractual obligations as a MSO, then the work which he carried out as overtime and at weekends was at all times the performance of tasks which he was required to carry out under his contract of employment. The fact that he may have volunteered to perform these tasks at times outside those which he contracted to do not mean that the performance was at those times no longer “intrinsically linked.””
He was entitled to be paid on the basis of all earnings in this case.
Both of these cases were dependant on the facts and wording of the contracts. However, both have potentially huge implications in the amount of pay that may be being routinely unpaid. It is likely that both these cases may be appealed and the Employment Tribunal judgment in Neal v Freight Liner is not binding unlike the Employment Appeal Tribunal judgment but, as things stand, it may be worth reviewing pay arrangements in light of these cases to consider if there may be a claim or to seek advice to clarify the correct interpretation of existing contracts.
If you have any questions on this article or employment law generally please contact me, Sarah Everton at firstname.lastname@example.org