Agreements on working hours and the NMW

Where an employee does “unmeasured work”, that is, work that is not measured by reference to the time worked, the parties have in the past been able to reach an agreement specifying the number of hours to be paid, taking into account the nature of the duties to be performed, as long as this is a “realistic average”. Effectively, this kind of agreement reflects the number of hours to be spent working under the direction and control of the employer. In Walton v Independent Living Organisation Ltd [2003] IRLR 469, the Court of Appeal held that a carer providing 24-hour cover for an epilepsy sufferer did not have to be paid for all those hours. Although she stayed at the client’s home for the whole 24-hour period, the client required minimal supervision, and a formal assessment had worked out that around six-and-a-half hours a day of assistance was needed. An agreement to that effect had been reached. The court held that payment should be based on those hours. The extent to which this kind of agreement can now be reached in relation to overnight sleep over care is now uncertain, following the cases discussed in this Chapter, in particular, Whittlestone v BJP Support Ltd.