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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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If employees of a care agency have agreed, before accepting

Resolved Question:

If employees of a care agency have agreed, before accepting employment, that hourly payment will be made only for time spent in the service users home, and not for travelling between calls, is this legal?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Is there any reason you think it might not be?
Customer: replied 1 year ago.
I was recently told that even if the employees agree that payment will only be made for time spent in service users homes, this is still illegal. Wages are above minimum wage by a fair amount and all employees are made aware, before employment is accepted, that to be able to keep care costs at a minimum for the service users, they will only be paid for the time spent with them.
Expert:  Ben Jones replied 1 year ago.
Hello, sorry my laptop experienced some issues and I have only just managed to fix it.Workers have the legal right to be paid at least the National Minimum Wage for the hours they work. What this means is that one has to look at the number of hours which amount to working time and the pay received for working, and ensure that the hourly rate is at or above the NMW rate. So it is possible that workers agree with the employer not to be paid for travel time between clients but if that time is deemed to amount to working time, it must be included when calculating their average pay.This is your basic legal position. I have more detailed advice for you in terms of the law on travel time and how to determine if it amounts to working time, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Thank you. Travel time is still somewhat of a legal grey area. As far as the law is concerned, a worker is only entitled to be paid for time which amounts to 'working time', which according to the Working Time Regulations 1998 includes ‘any period during which a person is working, at his employer’s disposal and carrying out his activity or duties’. As you can see travel time is not specifically included in there so it comes down to an interpretation of whether it can be included in this definition. Guidance from the Government's Business Link advice service suggests that the definition of working time includes 'travel as part of a worker's duties', but would not include travelling to the workplace, unless the travel is undertaken following "booking on" or reporting to an assigned depot or booking-on point, or time spent travelling outside normal working hours. Recent guidance from the Advocate General of the European Courts of Justice has provided further clarification on this. His advice is not binding but it is usually followed by the ECJ so it can still be useful. It said that in general there are three aspects to 'working time', those being (a) at the workplace, (b) at the disposal of the employer, (c) engaged in work duties. However, since then a formal decision in the ECJ was handed down in the case of Tyco Integrated Security. The company employed technicians who install and maintain security equipment at customers' premises in Spain. The technicians were provided with a vehicle and they travelled from their own homes to the locations they were instructed to install the equipment. They were not generally required to travel to an office or a central location before attending the clients’ sites. The Court decided that the time travelling from home to their customers’ locations was working time because the workers were ‘at the disposal’ of the employer and accordingly it should be included in their normal working hours. So if there is a requirement to travel to/from clients as part of the working day and duties and at that time the worker is entirely at the employer’s disposal, they can certainly argue that this time constitutes ‘working time’ and should be taken into account when calculating their remuneration and count towards their working hours.