Round #459

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

I'm not a lawyer, and this response is not legal advice—it's general information based on UK employment law (assuming "national living wage" refers to the UK's National Living Wage, or NLW, as that's the common context for this term). Laws can vary by jurisdiction, and specifics depend on your location, the workers' contracts, and other factors. I strongly recommend consulting a qualified employment law specialist, your local labor authority (e.g., ACAS in the UK), or HMRC for personalized guidance. With that said, I'll explain the key points based on publicly available information and relevant case law. ### Is This Lawful? In short: **No, it's likely not lawful** in the UK for domiciliary (home) care workers if the unpaid travel time causes their effective hourly pay to fall below the National Minimum Wage (NMW) or National Living Wage (NLW). Here's why, broken down step by step: #### 1. **What Counts as "Working Time" for Minimum Wage Purposes?** - Under the UK's National Minimum Wage Act 1998 and associated regulations, employers must ensure workers are paid at least the NMW/NLW for all hours worked. - For care workers who travel between client visits (e.g., in domiciliary care), the time spent traveling **between assignments** is generally considered "working time." This means it should be included when calculating whether the worker's pay meets the minimum wage threshold. - Key guidance comes from: - **HMRC (Her Majesty's Revenue and Customs)**: Their NMW manual explicitly states that travel time between home visits for care workers is working time and must be paid (or factored into pay calculations) to avoid underpayment. - **Case Law**: In cases like *Whittlestone v BJP Home Support Ltd* (2014) and others, courts have ruled that travel time between clients is compensable working time. If it's unpaid, it can dilute the worker's overall hourly rate below the legal minimum. - Travel to the first visit of the day or from the last visit home is usually **not** considered working time (unless specified in the contract), but time between visits **is**. #### 2. **Impact of Unpaid Travel Time** - If workers are paid only for time spent at client locations (e.g., the actual care visit) but not for the 30 minutes traveling between them, their effective hourly rate could drop below the NLW. - Example: Suppose a worker is paid £10.42/hour (the current NLW for workers aged 23+ as of April 2023) for a 1-hour visit but spends 30 unpaid minutes traveling to the next one. Over a shift with multiple visits, this unpaid time reduces their average pay per hour worked. - If the total pay divided by total working hours (including travel) falls below the NMW/NLW, it's unlawful. - This is a common issue in the care sector, leading to numerous tribunal claims and back-pay settlements. Organizations like Unison (a trade union) have campaigned on this, and there have been high-profile cases against care providers. #### 3. **Exceptions or Variations?** - **Contractual Agreements**: If the employment contract explicitly states that travel time is unpaid and workers agree to it, this doesn't override minimum wage laws. The effective rate must still meet NMW/NLW. - **Salaried Workers**: If workers are on a salary rather than hourly pay, the same rules apply—the salary must equate to at least NMW/NLW when divided by total working hours (including travel). - **Other Factors**: Things like on-call time, sleep-ins, or training might also affect calculations. If workers are classified as self-employed (e.g., zero-hours or agency), rules can differ, but misclassification is a risk. - **Sector-Specific Rules**: The care sector is regulated by bodies like the Care Quality Commission (CQC), and failing to pay for travel time could breach standards or lead to inspections. #### 4. **Consequences of Non-Compliance** - **For Employers**: HMRC can investigate, impose fines (up to 200% of arrears), and require back-pay (up to 6 years). Workers can also bring claims to an employment tribunal. - **For Workers**: They may be entitled to unpaid wages, and underpayment could affect benefits or pensions. - Recent enforcement has increased, with HMRC naming and shaming non-compliant employers in the care sector. ### What Should You Do? - **Review Pay Practices**: Calculate workers' effective hourly rates including all travel time between visits. Tools like HMRC's NMW calculator can help. - **Seek Advice**: Contact ACAS (0800 123 1100 in the UK) for free, impartial advice, or consult an employment solicitor. If you're an employer, consider auditing your payroll to ensure compliance. - **Best Practices**: Many care providers now pay for travel time explicitly (e.g., a flat rate per mile or per journey) or adjust base pay to account for it. This not only ensures legality but also improves staff retention. If this query relates to a different country (e.g., if "national living wage" means something else), please provide more details for a tailored response. If you meant something related to C# programming (e.g., building software to calculate wages), let me know—I can help with that too!

I'm not a lawyer, and this isn't legal advice—please consult a qualified employment law professional or relevant authority (like ACAS in the UK) for your specific situation. That said, based on publicly available information about UK employment law (assuming that's the context, given the reference to "national living wage"), I'll provide a factual overview. ### Is This Lawful? In the UK, the legality of not paying care workers for travel time between client visits depends on whether their overall pay meets the National Minimum Wage (NMW) or National Living Wage (NLW) requirements when all working time is accounted for. Here's the key points: - **Working Time Definition**: Under the Working Time Regulations 1998 and NMW rules enforced by HM Revenue & Customs (HMRC), time spent travelling between client visits in domiciliary care (e.g., home care workers) is generally considered "working time." This is because the travel is integral to the job and required by the employer. It's not the same as commuting to/from a fixed workplace. - **Minimum Wage Calculation**: Employers must ensure that the worker's average hourly rate across all working hours (including travel time) meets or exceeds the NMW/NLW. For example: - If a worker is paid £10.42 per hour (the current NLW for ages 23+ as of April 2023) only for time spent at client visits, but spends unpaid time travelling (e.g., 30 minutes between visits), their effective hourly rate could drop below the minimum if travel time isn't compensated. - HMRC calculates compliance by dividing total pay by total working hours. If including travel pushes the average below the threshold, it's unlawful. - **Relevant Case Law and Guidance**: - In cases like *Royal Mencap Society v Tomlinson-Blake* (Supreme Court, 2021), the court ruled on sleep-in shifts, but broader guidance from HMRC and tribunals (e.g., *Whittlestone v BJP Home Support Ltd* EAT case) has established that travel time between assignments counts as working time for minimum wage purposes. - The government’s NMW guidance explicitly states: "Time spent travelling in connection with duties, such as between appointments for care workers, is likely to count as time work." - If workers are on zero-hours contracts or similar, this is especially scrutinized. - **Potential Consequences**: If found non-compliant, employers could face: - Back pay owed to workers (up to 6 years). - Fines from HMRC (up to 200% of arrears). - Naming and shaming on government lists. - Employment tribunal claims from workers. ### What Should You Do? - **Review Pay Practices**: Calculate the effective hourly rate including all travel time. Tools like HMRC's NMW calculator can help. - **Common Solutions**: Many care providers pay for travel time separately, offer mileage allowances, or structure pay to ensure compliance (e.g., higher rates for visit time to cover averages). - **Seek Advice**: Contact HMRC's NMW helpline, ACAS, or a solicitor specializing in employment law. If you're outside the UK, laws vary (e.g., in the US, Fair Labor Standards Act might apply differently). Again, this is general information—your specific circumstances (e.g., contract terms, location) matter. If this relates to a different country, please clarify for more tailored info.