KAT v Torbay Council

For unmeasured work under the National Minimum Wages Regulations 1999, hours worked are the hours actually spent carrying out contractual duties in the pay reference period. A foster carer’s round-the-clock responsibility and availability do not automatically make every hour contractual working time. Sleep, time when children are at school or otherwise require no active care, and time when no placement exists may fall outside regulation 27. Work is not salaried hours work unless the contract provides an ascertainable basic number of annual hours and entitlement to an annual salary. An appeal has no realistic prospect where the first-instance assessment discloses no arguable error of law.

The applicant claimed national minimum wage arrears from Torbay Council under a foster-care agreement covering March 2008 to September 2012. Recorder Browne-Wilkinson QC had earlier held that the applicant was a worker. On quantum, Recorder Stead treated the work as unmeasured, rejected payment for periods when no child was placed, and assessed average active work at 15 hours per day. The applicant sought permission to appeal, arguing that the agreement required 24-hour work or constituted salaried hours work. The central issue was whether the Recorder had made an arguable error in applying the Regulations.

1. Application refused. The proposed appeal had no realistic prospect of success. The issue of extending time therefore did not arise.
2. Salaried hours work. Although the point had not been pursued below, the court considered it because the applicant had been unrepresented. Regulation 4 required a contract under which the worker was entitled to payment for an ascertainable basic number of hours in a year and to an annual salary. The agreement provided for a weekly fee during placements and notice periods, but no annual salary and no ascertainable paid hours. The proposed reliance on regulations 24 and 21 therefore had no realistic prospect of success.
3. Unmeasured work. The work was unmeasured work under regulation 6, so regulation 27 required the relevant hours to be calculated by reference to time spent carrying out contractual duties. The applicant’s quasi-parental responsibility was continuous, but that did not mean that he performed contractual duties every minute. The Recorder was entitled to exclude substantial periods, including sleep and periods when the children were at school or did not require active care or supervision.
4. Sleep-in and availability cases. McCartney was not directly applicable because it concerned salaried hours work. Wray v Lees and Walton illustrated cases in which work was limited to the performance of specific caring duties, while the Focus case showed that detailed distinctions may be required. The present live-in foster-care arrangement, in the applicant’s own home, did not realistically support treating him as working 24 hours a day. During the final eight months, mere availability to accept a placement was not performance of contractual duties for regulation 27.

• Court of Appeal (Civil Division) — A renewed application for permission to appeal against Recorder Stead’s quantum decision was refused in [2018] EWCA Civ 3045. The out-of-time issue was not reached.
• Exeter County Court — Recorder Stead assessed the arrears at just over £34,000 including interest, using an average of 15 hours per day. Earlier, Recorder Browne-Wilkinson QC held that the applicant was a worker for the purposes of the National Minimum Wage Act 1998 and the National Minimum Wages Regulations 1999.