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Can training undertaken before job start date count as employment?

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Opalkova v Acquire Care Ltd, Ms Opalkova was employed as a carer to deliver care to adults in their homes, travelling to service users homes throughout the day. Following the interview she was told that she had been successful and would be offered the post provided that she undertake an online training course prior to starting work. Ms Opalkova completed the test and passed and was then given her contract of employment.

She claimed that she was entitled to be paid the National Minimum Wage in respect of her time spent attending the training and submitted a claim to the tribunal complaining about this and not being paid the National Minimum Wage for travelling between homes.

The Employment Tribunal, relying upon regulation 33 of the National Minimum Wage Regulations 2015, and its conclusions that Ms Opalkova was not employed at that time, and would not have been permitted to carry out caring duties until she had completed the training, dismissed this claim.

Ms Opalkova appealed and the appeal tribunal found that the original tribunal had erred because it failed to consider whether she had entered a contract with Acquire Care at the relevant time under which she was a worker within the meaning of section 54 National Minimum Wage Act 1998; and, if so, whether her attendance at this induction training fell, in all the circumstances of the case, to be treated as work, having regarding to all the relevant provisions of the 2015 regulations, not just regulation 33.

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