Round #433

We pay our care workers the national living wage but they spend 30 minutes travelling between client visits unpaid. Is this lawful?

### Legality of Unpaid Travel Time for Care Workers in the UK Assuming this query relates to UK employment law (given the reference to the "national living wage," which is the UK's statutory minimum wage), I'll address it based on current regulations under the National Minimum Wage Act 1998 and related guidance from the UK government and ACAS (Advisory, Conciliation and Arbitration Service). If you're in a different jurisdiction, local laws may vary—consult a lawyer for specifics. #### Key Legal Principle: When is Travel Time "Working Time"? - Under the **Working Time Regulations 1998** (which implement the EU Working Time Directive, still applicable post-Brexit), "working time" includes all time when a worker is **required to be at the employer's disposal and carrying out their duties**. This can include travel if it's part of the job. - For the **National Living Wage (NLW)** (currently £11.44 per hour for workers aged 21+ as of April 2024), employers must pay at least this rate for all "working time." Unpaid time that qualifies as working time would breach this, potentially leading to back pay claims, fines from HMRC (up to £20,000 per worker), or employment tribunal action. #### Specific to Care Workers and Travel Between Clients - **Home care/domiciliary care workers** often travel between clients as a core part of their role. Government guidance (from the Department for Business and Trade) and ACAS explicitly state that **time spent travelling between client visits during a shift is usually considered working time** and must be paid at NLW rates. - **Why?** During this travel, workers are on duty, unable to use the time for personal purposes, and it's integral to fulfilling their contract (e.g., visiting multiple clients in a day). - Evidence: The Low Pay Commission's reports and HMRC enforcement cases have penalized care providers for deducting travel time from pay. For example, in 2022–2023, HMRC recovered over £1.5 million in arrears for care workers due to unpaid travel and sleep-ins. - Exceptions where travel **might not** be paid: - **Commute to/from the first/last client of the day**: This is generally **not working time** (similar to any employee's journey to/from their workplace). It's considered personal time, so unpaid. - **If travel is outside normal working hours** (e.g., a worker chooses to go home between distant visits and isn't required to travel directly), it may not count. However, if the employer mandates or schedules the route, it likely does. - **Self-employed contractors**: If your workers are genuinely self-employed (not employees or workers under the Employment Rights Act 1996), NLW doesn't apply, and contracts can exclude travel pay. But many care workers are classified as "workers" entitled to NLW—misclassification is a common tribunal issue (e.g., Uber/Bolt cases set precedents). #### Is Your Practice Lawful? - **No, it's likely unlawful** if the 30 minutes is travel **between clients during a paid shift**. Paying only for client visit time (e.g., 1-hour visits) while excluding intervening travel violates NLW rules. You must include this time in calculating average hourly pay over the pay reference period (typically monthly). - **How to check compliance**: - Calculate total working hours: Include travel between visits + direct care time. - Ensure total pay ÷ total working hours ≥ NLW. - If sleep-ins or on-call time is involved (common in care), additional rules apply—sleep-ins were ruled working time by the Supreme Court in 2022 (*Royal Mencap Society v Tomlinson-Blake*), requiring NLW pay unless the worker is genuinely free to sleep. - Penalties for non-compliance: HMRC can investigate via complaints or audits. Workers can claim up to 6 years' arrears via tribunals. #### Recommendations - **Review contracts and payslips**: Ensure travel time is logged and paid. Use timesheets to track it accurately. - **Seek advice**: Contact ACAS (helpline: 0300 123 1100) for free guidance, or a solicitor specializing in employment law. The Care Quality Commission (CQC) may also scrutinize pay practices in regulated care settings. - **Best practice**: Many care providers now include travel time in pay or offer mileage allowances (tax-free up to 45p/mile) to comply and retain staff. This is general information based on publicly available UK law as of 2024—not legal advice. For your specific situation, consult a qualified professional.

### UK National Minimum Wage and Travel Time for Care Workers In the UK, the legality of not paying care workers for travel time between client visits depends on employment status, the nature of the work, and how the National Living Wage (NLW) is calculated. I'll break this down based on current UK employment law (as of 2024), drawing from the National Minimum Wage Act 1998, guidance from the Department for Business and Trade (DBT), and relevant case law. Note: This is general information, not legal advice—consult a solicitor or ACAS for your specific situation. #### Key Legal Principles - **National Living Wage Requirements**: The NLW (currently £11.44 per hour for workers aged 21+ as of April 2024) must be paid for all "working time." Travel time between clients is often considered working time if the worker is under contract and required to travel as part of their duties. Unpaid travel time can lead to underpayment if it reduces the effective hourly rate below the NLW when averaged over the pay period. - **Working Time Definition**: Under the Working Time Regulations 1998 (Regulation 2), time spent traveling between work assignments during the working day counts as working time. For care workers (often classified as "home care workers"), this includes journeys between clients if: - The worker is required to go directly from one client to the next. - They are carrying equipment or fulfilling duties en route. - It's not "pure travel" (e.g., commuting from home to the first client, which is generally unpaid). DBT guidance explicitly states that for domiciliary care workers, travel time between visits should be included in NLW calculations unless it's insignificant or outside working hours. - **Employment Status Matters**: - **Employees/Workers**: Most care workers are "workers" under UK law (even if self-employed on paper), entitling them to NLW. If travel is a core part of the job, it must be paid. - **Self-Employed**: Genuine self-employed contractors aren't covered by NLW, but many care workers are misclassified. Tribunals (e.g., *Uber BV v Aslam* [2021] UKSC 5) have ruled that control by the employer indicates worker status, making unpaid travel potentially unlawful. #### Is 30 Minutes Unpaid Travel Lawful? - **Generally, No**: If the 30 minutes is between paid client visits and required by the employer, it likely counts as working time. Failing to pay for it could breach NLW rules, as the total pay must cover all working hours. For example: - If a worker does 4 hours of visits but 2 hours of unpaid travel in a shift, their effective rate drops if only the 4 hours are paid. - HMRC enforces this via audits; underpayment can result in fines up to 200% of arrears, plus backpay. - **Exceptions**: - **Commute Time**: Travel from home to the first client (or last to home) is usually not working time and can be unpaid. - **De Minimis Travel**: Very short or voluntary travel might not count, but 30 minutes per interval is significant. - **Sleep-ins or On-Call**: Different rules apply, but not relevant here. - **Contractual Agreements**: Even if a contract says travel is unpaid, it can't override statutory minimums. Zero-hours contracts are common in care but don't exempt NLW. #### Evidence from Guidance and Cases - **DBT/HMRC Guidance**: The "National Minimum Wage Manual" (updated 2023) includes examples for care workers, stating travel between appointments must be paid if it's during the working day. See gov.uk/national-minimum-wage for details. - **Case Law**: In *Royal Mencap Society v Tomlinson-Blake* [2021] UKSC 8, the Supreme Court clarified sleep-in shifts, but for travel, lower tribunals (e.g., employment tribunal decisions on care workers) have consistently ruled unpaid inter-visit travel as unlawful underpayment. - **Industry Context**: The care sector faces frequent HMRC investigations; reports from UNISON and Skills for Care highlight widespread NLW breaches due to unpaid travel, leading to arrears payments in many cases. #### What Should You Do? - **Audit Pay**: Calculate effective hourly rates including travel time. Use the NLW online calculator on gov.uk. - **Best Practice**: Pay for travel time to comply—many providers now include it or offer mileage allowances (tax-free up to 45p/mile). - **Seek Advice**: Contact ACAS (acas.org.uk, helpline 0300 123 1100) for free guidance, or a employment lawyer. If workers complain, they can claim via HMRC (anonymous) or an employment tribunal (within 3 months). If this is in a different country (e.g., US Fair Labor Standards Act has similar but distinct rules), provide more details for tailored info.