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Unmeasured work
[ch 4: pages 100-101]Workers who do “unmeasured work” (regulation 44, NMWR) must be paid the NMW for all the hours they spend during the pay reference period carrying out their contractual duties unless there is a daily average agreement in place (regulation 49, NMWR 15). This is a written agreement between worker and employer setting out the average number of hours the worker is likely to spend each day carrying out the contractual duties. It must be a realistic average and it must have been entered into before the relevant pay reference period.
There is concern about the potential for daily average agreements to be abused to get around NMW obligations where careworkers are based in a service user’s home.
In the next case, the Court of Appeal allowed the use of a daily average agreement to regulate the pay of a careworker who performed a continuous 24-hour shift looking after one service user, but who was not required to perform tasks on a continuous basis:
Ms Walton provided 24-hour cover for an epilepsy sufferer. She had a zero hours contract with no obligation on her employer to offer a minimum number of hours per week. Walton was obliged to be at the resident’s home for 24 hours, three days a week, and was paid just £31.40 a day.
Prompted by a complaint to HMRC for NMW non-payment and an impending visit from the NMW inspectorate, the employer conducted an assessment of the hours worked by their care staff for each client and put in place daily average agreements for each carer. Walton signed a daily average agreement accepting that although she was required to remain at the client’s home for the whole 24-hours, she was only needed to carry out care tasks for an average of six hours and 50 minutes each day. As a result of the daily average agreement, Walton’s pay met the NMW threshold in place at the time, because only the hours in the daily average agreement counted for the purposes of the NMW.
Walton v Independent Living Organisation Ltd [2003] IRLR 469