The National Minimum Wage & Peripatetic Workers
The BBC is this morning reporting the out of tribunal settlement of a claim by a domiciliary care worker who was not paid for travelling between appointments. The settlement is being reported as a surprise and a wake up call for employers. Regular readers of my posts will not be surprised as I wrote about the genesis of this matter on 19 June and 30 October last year. The only puzzle about the settlement is that it wasn’t reached sooner.
Today’s case is one of the practical consequences of the decision of the CJEU in Federacion De Servicios Privados del Sindicato Comissiones Obreras v Tyco Integrated Security which said that peripatetic service engineers in Spain were to be treated as working when driving to and from their first and last calls of the say. Arguably the clearest statement of principle was set out by AG Bot in his advice to the Court:
“38. The workers at issue in the main proceedings must of necessity travel in order to carry out the installation and maintenance of security systems for the various customers of the company that employs them. In other words, travelling by those workers is a necessary means of providing their technical services to the customers designated by their employer. Such travelling must therefore be regarded as forming part of the activity of those workers.”
The CJEU’s decision was in marked contrast to regulation 34 of the UK’s minimum wage regulations which indicate that travelling time between the place of work and home is not working time and therefore doesn’t attract the minimum wage.
Of course today’s settlement is not a binding legal precedent and we’ll probably never know all the reasons for the settlement (I suspect commercial and legal realism was in play). But it reflects the practical reality that where there’s a conflict between the CJEU’s interpretation of EU Directive’s and UK regulations the court will usually prevail.
Today’s case is another reminder that the National Minimum Wage Regulations are a minefield and that a working knowledge of them is not enough to plot course to safety. With the forthcoming increase in the minimum wage sound legal support is more important than ever.