Walton v The Independent Living Organisation

Whether work is “time work” under regulation 3(a) of the National Minimum Wage Regulations 1999 depends on the contractual basis for determining remuneration. Payment expressed by the day does not suffice if time is merely a unit of account and the rate also reflects matters such as the difficulty and duration of assigned tasks.

The tribunal must examine all the facts, including the nature of the work. Work falling outside time work, salaried hours work and output work is unmeasured work. A valid written daily-average agreement may then determine the hours worked for minimum-wage purposes under regulation 28. Whether periods spent available but not actively performing specified duties count as carrying out contractual duties is a question of fact.

The appellant was employed as a live-in carer for a person with epilepsy. She received £31.40 for each day of a three-day residential assignment and was required to remain on the premises, although her specified caring tasks took an assessed average of six hours and 50 minutes daily.

The Employment Tribunal dismissed her claim that she had received less than the national minimum wage. It found that her remuneration was assessed by the difficulty and duration of her tasks rather than solely by time. The Employment Appeal Tribunal dismissed her appeal.

The central issue before the Court of Appeal was whether the employment constituted time work under regulation 3 of the National Minimum Wage Regulations 1999. If it did not, the parties accepted that it was unmeasured work governed by regulations 27 and 28.

1. Appeal dismissed unanimously. Aldous LJ delivered the leading judgment. Arden LJ adopted his reasons and supplied further concurring reasoning. Jacob J agreed with both judgments.

2. Regulation 3(a) of the National Minimum Wage Regulations 1999 does not encompass every arrangement in which remuneration is expressed for a period such as a day or month. It requires the work to be paid for by reference to the time for which the worker works. Regulation 3(b) confirms that payment may instead be referable to another measure, even where time also enters the calculation.

3. Per Aldous LJ, the correct approach is to consider all the facts, including the type of work, and determine whether remuneration is fixed by reference to working time or something else. That factual decision belongs to the employment tribunal. The tribunal had evidence for finding that the appellant’s pay reflected the difficulty and duration of particular tasks and was not determined by working time. The Court of Appeal therefore would not disturb it.

4. Arden LJ explained that time may be merely a convenient unit for quantifying remuneration rather than the yardstick determining the rate. On the tribunal’s findings, both difficulty and duration determined the appellant’s rate. Regulation 3(a) accordingly did not apply, and the work was unmeasured work under regulation 6.

5. Regulation 28 permitted a written agreement to predetermine the realistic average daily hours spent carrying out contractual duties. The tribunal was entitled to find that the signed assessment was such an agreement and that six hours and 50 minutes was realistic. The resulting hourly remuneration exceeded the applicable minimum.

6. The regulations distinguish working from merely being available for work in the context of time work, but do not draw the same antithesis for unmeasured work. Whether a worker who stands and waits is carrying out contractual duties remains a question of fact. Given the finding that the appellant need not give the client her full attention when not performing specified tasks, she was not continuously performing duties for 24 hours each day.

7. British Nursing Association v Inland Revenue [2002] EWCA Civ. 494 and Scottbridge Construction Ltd v Wright [2003] IRLR 21 were distinguished. In each, the parties agreed that remuneration was determined solely by time, so neither resolved the classification issue in this appeal. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously and upheld the tribunals’ conclusion that the appellant performed unmeasured work. Permission to appeal to the House of Lords was refused.
2. Employment Appeal Tribunal: On 25 April 2002, dismissed the appellant’s appeal from the Employment Tribunal.
3. Employment Tribunal: On 30 April 2001, dismissed the claim that the appellant had been paid less than the national minimum wage.