The National Minimum Wage (NMW) legislation states that workers who “sleep over” are only entitled to be paid for the hours that they actually work. In Whittlestone v BJP Home Support Ltd, the Employment Appeal Tribunal (EAT) held that the first question for tribunals to ask was whether the claimant worked during the hours they were claiming.

Basic facts

Ms Whittlestone, a care worker, was paid £6.35 per hour for providing care at the home of a service user, calculated from the moment of her arrival to the moment of her departure. However, she was not paid for the time spent travelling between the home of one service user and the next, which she did by bus.

She was also required to undertake regular sleepovers from 11:00pm to 7:00am to care for three young adults with Down’s Syndrome, for which she was paid a fixed fee of £40 per week. She had never been woken up to provide any specific care.

Ms Whittlestone claimed that she was entitled to be paid the NMW for time spent travelling between service users’ homes; and that she should be paid for the sleepovers as the £40 fee worked out at less than the NNW when calculated on an hourly basis.

Relevant law

Regulation 15(1A) states that time during the hours that a worker is sleeping at a place of work “shall only be treated as being time work when the worker is awake for the purpose of working…”

In relation to travel time, it states that time work includes travel time except where the travelling is “incidental” to their duties. Time work is, however, “assignment work” if it “consists of assignments .. to be carried out at different places between which the worker is obliged to travel that are not places occupied by the worker’s employer.”

Tribunal decision

The tribunal held that, as Ms Whittlestone was never asked to do any work when sleeping over, she was effectively “on call” and the overnight shift fell within regulation 15(1A). That meant that only the hours when she was actually working could be treated as “time work” and she was not therefore entitled to the NMW.

As for travelling time, it held that Ms Whittlestone was not carrying out any care work or care duties during the time when she was travelling between one client’s house and the next. The travelling was therefore purely incidental to the duties carried out in the course of her work and could not be treated as “time work”.

EAT decision

The EAT, however, disagreed. It held that the first question to ask was whether the claimant worked during the hours they were claiming. This question had to be decided “on a realistic appraisal of the circumstances in the light of the contract and the context within which it is made .... [and] asking whether what was done was work”.

In this case there was only one answer - that Ms Whittlestone was engaged in time work as she would have been disciplined if she had not been present throughout the period of time. The fact that her physical services were not called upon during the night were irrelevant since “her job was to be there.”

In relation to the claim for travelling time between visits, the EAT criticised the tribunal for not dealing with the question of ‘assignment work” under regulation 15. In this case, she was obliged to visit each service user in turn during the course of the day, which involved travelling between them. With the exception of those periods when she had time to return home between visits, the work was clearly “assignment work” and she was entitled to be paid for her travel time.