Whittlestone v BJP Home Support Ltd

For National Minimum Wage purposes, the decisive question is whether the claimant was working during the claimed hours. That question requires a realistic appraisal of the contract and its context. Work does not depend on the level of physical or mental activity actually undertaken. Required attendance for specified hours, subject to discipline and at the employer’s disposal, will normally constitute time work, even where the worker sleeps and no particular task arises.

Regulation 15 applies only where the worker is not otherwise doing time work. Travel between assignments is time work unless a statutory exception applies. Where an employee has no normal working hours, statutory notice pay must also be considered before any alleged overpayment is set off.

Mrs Whittlestone provided care services at different service users’ homes. Her contract required daytime shifts, travel between assignments, and overnight sleepovers at the home of three service users. She was required to remain present during the sleepovers and was paid £40 per week for them.

The Employment Tribunal held that the sleepovers fell within the sleeping-facilities provisions of regulation 15 of the National Minimum Wage Regulations 1999, that travel between service users was incidental to her duties, and that an alleged overpayment could be set off against sums otherwise due. It also found that suitable sleeping facilities had been provided.

The central issues were whether the sleepovers were time work, whether travel between service users was assignment work, and whether the alleged overpayment survived the statutory notice-pay provisions.

1. Sleepovers. The appeal succeeded because the Tribunal had treated the case as one involving an employee who was merely on call. The contract and findings showed that Mrs Whittlestone was required to work the overnight hours, had to remain present under threat of disciplinary action, and was at the employer’s disposal. Her attendance itself was the work. The fact that she slept and was never required to perform a particular care task was irrelevant. The sleepovers were therefore time work under regulation 3, and regulations 15(1) and 15(1A) did not apply.
2. Approach to classification. The expressions “on call” and “core hours” are statutory descriptions. They may assist in describing facts but must not replace the statutory question whether the claimant was working. The correct approach is a realistic appraisal of the contract and the surrounding circumstances.
3. Travel. The Tribunal failed to address whether the work was assignment work under regulation 15(3)(b). Mrs Whittlestone was placed on a rota and required to travel between service users during the day. That was assignment work, so travel between assignments was time work, subject to periods when she had sufficient time to return home and the home-travel exception applied.
4. Notice pay and set-off. The Tribunal overlooked section 89 of the Employment Rights Act 1996. Its treatment of the alleged overpayment and set-off was therefore erroneous.
5. The finding that suitable sleeping facilities had been provided was a factual conclusion supported by evidence and was not perverse. That ground of appeal failed. The appeal was otherwise allowed. The sleepover and travel calculations were remitted for computation and argument.

• Employment Tribunal: The Tribunal dismissed the complaints of unlawful deductions and held that the sleepovers were not payable as time work, travel between service users was not time work, and sums due could be set off against an alleged overpayment.
• Employment Appeal Tribunal: The appeal was allowed on the sleepover, travel and notice-pay issues. The finding concerning suitable sleeping facilities was upheld. The financial calculations were left for further determination.