Travel ruling is a victory for harried homecare workers
At a time of austerity and relentless pressure on rights at work, Robert Patterson has just scored a victory from which many thousands may eventually benefit.
Meanwhile, a decision by the European Court of Justice (ECJ) in Luxembourg could put a stop to some of the meanest practices arising from the privatisation of our health and care services.
Patterson works for Castlereagh Council as an assistant plant engineer. Last year he went to an industrial tribunal claiming the council ought to have included the voluntary overtime he regularly undertakes when calculating his holiday pay. The tribunal rejected his argument.
Undaunted, Patterson, with the backing of his union Nipsa, appealed to the courts. On June 26 last the Appeal Court found in his favour. It is now the law in Northern Ireland that holiday pay should reflect pay for hours actually worked rather than for the minimum hours contracted to be worked.
Appeal Court decisions here are not binding across the water. But lawyers expect the Patterson judgment to be accepted by the British courts as "persuasive". Unions there are busily preparing follow-up claims.
The Patterson case could be one of those that goes almost unnoticed at the time but which is later shown to have had momentous consequences.
Patterson based his successful plea on an interpretation of the EU Working Time Directive. This was also the basis of the ECJ ruling in a case brought by employees of Spanish security installation company Tyco.
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The employees argued that time spent travelling between their homes and appointments should be defined as part of their working day, not as "leisure time".
The ruling in their favour has major implications for companies in the EU with mobile workers travelling to and from appointments.
Homecare workers are a case in point. The number of care workers who could potentially be affected by the Tyco decision has rocketed over recent years as the service is parcelled out to private companies. Tens of thousands no longer receive the minimum wage: the fact they are not paid at all for time spent travelling pushes their effective hourly rate below the threshold.
The ECJ ruling refers to travel between work and home. But the decision also opens the way to claims for time spent travelling from one appointment to another one.
The key factor for the ECJ was that a worker's travelling time couldn't be considered to be her or his own, to be used to pursue personal or leisure interests; that the workers, in fact, were at the employer's disposal in these periods and were, therefore, in the ordinary meaning of the phrase "at work". On the face of it this applies to travel to and from work appointments as much as to travel between work and home.
The ruling is particularly relevant to the provision of care to the frail and elderly house-bound. Funding cuts mean that homecare workers are increasingly expected to carry out their roles in shorter periods of time.
Just a few years ago a homecare visit of less than 30 minutes was unusual. Now 15 minutes is becoming the norm. The balance between time spent with the person being cared for and time rushing from one appointment to another is increasingly out of kilter with the needs of each.
The Unison trades union instances a day in the life of Janice. She has a 30-minute appointment with Mr J. Her task today is to make him his lunch. But he is incontinent and has soiled himself before she arrives.
His "care package" entitles him to two shower-days a week, but this isn't one of them. He asks her to help him shower instead of cooking. She waves this aside, helps him wash and eat, runs 10 minutes (unpaid) over time. Then, shouting goodbye, still off the clock, she makes a dash for her car and her next appointment.
Talk to any group of homecare workers for 10 minutes and you'll hear stories like this come tumbling out, not as touching or angering examples of things that can happen, but of something that is happening day in and day out and is par for the course.
Implementing the Patterson and Tyco judgments won't remove these problems. But it would be a start, an earnest of intention to begin to confront the shameful way we treat some of our most needful fellow citizens and the studied disrespect we show for the workers they depend on for comfort and care.