Note: This is applicable for UK agencies only and is not legal advice
As we’ve discovered with issues like working hours per week and holiday pay, running an agency managing temporary staff can be like wading through a swamp. The information available is thick and murky, and you’re stuck in the middle of it. Not only do agencies have to abide by UK laws, but there are EU regulations to bear in mind as well – as long as, of course, Brexit doesn’t actually happen.
Just last week, an agency sent through an article which was of high concern: MiHomecare was facing a group action lawsuit and is having to possibly cough up hundreds of thousands of pounds for staff who had technically been paid under the minimum wage.
Before we get too into the thick of things let me just say – I love when agencies voice their concerns, send us articles, and discuss the industry with Watu. It’s awesome to hear from you and it helps to keep us in the loop of what needs working on. So, kudos to the agency who sent through this article!
What was the case?
This case currently only applies to care workers who must travel in between their shifts, spending sometimes an hour either driving down small roads, or waiting outside homes until their elderly patients are ready to see them. They were not compensated for this time and as a result, were working long hours without balanced pay.
The court, and now HMRC, have decided that this lack of compensation qualifies the carers as potentially working for less than minimum wage, hence why they can now claim these fees back and why HMRC is in the midst of investigating more than 100 other home care suppliers and their working practices.
This decision could also affect many other industries including IT workers, nurses, engineers and technicians with many of them supporting this case and hoping to better their own circumstances which involve many hours of travel per day.
But that’s just looking at travel in between shifts…
Most promotional agency staff commute to their place of work, fulfil their shift, then commute home again. So does the above apply? Most likely not, if this is how your staff are working.
And most agencies, if the staff are having to travel for the campaign – like in guerilla marketing – continue to pay the staff member continuously during the shift, rather than discounting the time spent hopping from one place to another.
But what about travel to and from work?
Here’s where it starts to get swampy. The Court of Justice of the European Union ruled late last year that “those with no fixed place of work spend travelling between home and their first and last places of work each day counts as ‘working time’“.
So, said simply, when your temporary staff are going to and from their shifts/home, this does count as work. What is important to note, however, is that this has effect on the Working Time Directive which only has ruling over working hours and not working pay.
In fact, the ruling of the case from last year specifically stated that the “CJEU expressly stated in its decision that it is for national legislation to determine whether or not this travelling time – or, indeed, any other category of working time – is paid or unpaid”.
So should you be paying staff for their travel time?
Totally separate from the Working Time Directive, minimum wage is governed by the National Minimum Wage Act.
They have stated that time spent travelling to and from a shift is not subject to minimum wage, consequentially meaning that although it’s working time, you do not necessarily have to pay for it.
What’s important to consider
Based on the above, it then seems like what’s important to consider are the hours and not necessarily the pay. So when viewing the issue from this angle, agencies should be bearing in mind the European Union’s Working Time Directive. For example, it would be worth reviewing:
- If the staff member has not opted out of the 48 hour working week initiative, does this mean they’re then working over the 48 hours?
- Does this affect how much break time staff can have during the day?
- Does it affect the number of consecutive hours worked?
- Must holiday pay reflect this new total of hours worked?
- Are you staff working night shifts? There are extra rules protecting staff from being overworked throughout the night.
- Do your terms of engagement comply with the ruling?
It seems like, for now, as long as your agency is complying with the working hours regulations, then you’re following the rules and will make it through that swamp unscathed. But with national and EU laws changing and evolving to ensure staff are treated fairly and compensated correctly for their time, it’s worth keeping an eye out on these topics.
We would always recommend discussing these legal issues over with your HR department or employment lawyer to ensure you’re in line with what’s being required. And an easy way to stay in tune with what’s happening? Set up a Google alert with keywords such as “working time directive”, “national minimum wage”, “travel time compensation”, and so on. It’s not a completely reliable way to catch the latest laws, but it could go a long way in alerting you as to what’s happening, what’s being discussed, and what’s being determined by the courts.
Did you already know this about travelling time? Or will you now be reviewing your staff schedules? I’d love to hear whether you’re already a step ahead or will be tackling this issue now!