For workers with no fixed base the first and last journeys are counted as ‘working time’ …. But this does NOT mean they have to be paid. The clue as ever will be in the contract – if the contract says you will be paid from the point of arrival on call one and stop being paid at the point of departure from the last call, then the additional working time generated from the Tyco case for travelling does not attract pay. Yet. It does however have one or two practical considerations:
- It counts towards daily and weekly rest break provisions (in 6 hours, 24 hours, weekly or 2-weekly)
- It counts as working time for the purposes of the 48 hour week – so you may need more employees to opt out, or reduce their rotas if they won’t.
There has not yet been a case that links working time with the NMW…the argument being that if Cheryl is paid NMW for 35 hours, but has working time of 45 hours including travel, doesn’t this have the effect of reducing her pay below NMW? ‘Not necessarily’ is the answer, because what constitutes working time in a NMW sense is different to what constitutes working time for the purposes of Working Time regs. For NMW to apply the worker has to be available to carry out their duties and at the employer’s disposal etc. A carer in the car on her way to her first appointment is not necessarily ‘available’. Sure as eggs are eggs (building on the Easter theme) someone will test this point in court at some point. But it hasn’t been tested yet, so for now, there is no compulsion to make changes.
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