Veitch Penny LLP - Exeter | Crediton, Devon

Case

Walton v Independent Living Organisation Ltd
Court of Appeal - (27 February 2003)

Issues

(1) National Minimum Wage
(2) Care workers
(3) “Unmeasured work”

Facts

The employer provided carers for people who, because of their age or disability, needed assistance to maintain their independence and to remain in their own homes. Ms Walton was employed as a carer allocated to a client who suffered from epilepsy and had fits on a regular basis.

The client was relatively easy to care for, needing a minimum of supervision. She could attend to her own needs i.e. she could feed herself, tidy her room, attend to her personal hygiene, etc. Much of her time was spent watching television and doing jigsaws.

Ms Walton worked three days on, four days off. She was paid £31.40 per day, and accepted that she worked less than seven hours a day. Her duties including the client’s washing, shopping, ironing, preparation of meals and medication. The client usually went to bed between 9.30pm and 10pm, and slept through the night. Consequently, Ms Walton was very rarely disturbed during the night.

Ms. Walton made a claim with the Employment Tribunal stating that she was not paid the National Minimum Wage (currently £4.20 per hour). She claimed that she was engaged in “time work” and accordingly, her daily rate should be divided by 24, giving an hourly wage of £1.31. Her employer argued that she was engaged in “unmeasured work”. Therefore, her daily rate should be divided the daily average of work actually done, namely, by 6.83 hours. This would give an hourly rate of £4.60, well above the minimum wage.

Her claim was unsuccessful at the Tribunal, and also with the Appeal Tribunal.

She appealed to the Court of Appeal. The issue to be considered was whether Ms Walton carried out "time work" or "unmeasured work" for the purposes of the Regulations. "Time work" was defined as work that was paid for under a worker's contract by reference to the time for which a worker worked.

Decision

The appeal was dismissed.

The Court of Appeal held that Ms Walton did not do “time work” as defined by the legislation. Although her pay was expressed by the day, everything else in her employment pointed to her being engaged in unmeasured work. In this case, that was the work carried out by Ms Walton caring for her client, which took place over a period of twenty-four hours. However, she did not spend twenty-four hours a day in carrying out her contractual duties. She was paid by reference to the tasks required.

Comments

The Court of Appeal held that the decision whether an employee was doing time work or unmeasured work for the purposes of a National Minimum Wage calculation was a matter of fact for an Employment Tribunal to decide. There was an evidential basis for the Tribunal’s decision and it would not be right for the Court to reject that finding. It also noted that the Tribunal was correct to conclude that there was a written agreement as to the hours Ms Walton worked to carry out those tasks or duties, and that 6 hours and 50 minutes was a realistic assessment of her work.