In Baxter v Titan Aviation Ltd the Employment Appeals Tribunal (“EAT”) has held that lay-over time, which required a worker to stay overnight at a given location ready for work the next day, did not constitute ‘work’ for the purposes of the National Minimum Wage Regulations 1999 (“NMWR”).
Mr Baxter was a casual driver for the company, driving clients going on holiday to their point of departure. Drivers would sometimes be asked to stay overnight in a hotel or B&B in order to be able to pick up passengers in the morning. From August 2006, the rate paid for normal hours increased but a flat rate was introduced for these ‘lay-over’ periods. Mr Baxter subsequently made several claims, including one that the pay that he received for his lay-over hours was less than the minimum wage. A tribunal found that lay-over time was not ‘work’ for NMWR purposes, but in so holding it applied the definition of ‘working time’ in the Working Time Regulations. It found that Mr Baxter could do as he wished during the lay-over, provided he picked the client up on time and gave the company the phone number of his accommodation. This was, in the tribunal’s view, far removed from the situation of doctors, nightwatchmen, caretakers, security guards, etc who are on call during the night. As he was not working during the lay-overs Mr Baxter was not therefore entitled to the minimum wage in respect of it. Mr Baxter appealed.
The EAT stressed that only the NMWR were relevant to Mr Baxter’s claim for lay-over pay and warned of the danger of tribunals failing to appreciate the differences between the two sets of Regulations. Nevertheless, the EAT thought it plain from the facts that Mr Baxter was not working during his lay-over periods. He was not at his place of work, was performing no tasks and had no responsibilities, even of the contingent kind characteristic of the job of a nightwatchman or a night-sleeper. Regulation 15 of the NMWR deems certain non-work periods as work where the worker is available at or near a place of work for the purpose of doing time work, and is required to be available for such work. Regulation 15 only applies when a worker is not working but is available ‘for the purpose of doing work’. The EAT in the present case noted that the only reason for Mr Baxter’s lay-overs was that he could get to work in the morning. Even if this could be analogous with travelling time – i.e. time which a worker is required to spend getting to the place where he or she will work – that is not treated in the NMWR as time during which the worker is working, but is itself the subject of deeming provisions. Thus, Mr Baxter did not fall within Regulation 15(1) as he did not have to be ‘available’ for anything. His obligation to inform the company of his accommodation’s phone number did not affect this analysis. A phone call would simply change the time at which the lay-over finished and Mr Baxter’s work started, not alter the character of the lay-over itself.
Even if it was wrong in this the EAT considered that Mr Baxter would clearly fall within Regulation 15(1A), which provides that where workers are supplied with ‘suitable facilities for sleeping’ they are treated as working only when awake for the purpose of working. It would be up to Mr Baxter how much of any lay-over period he spent asleep; but in so far as he was awake it would not be ‘for the purpose of working’. In any event, given that Mr Baxter’s normal hourly rate was substantially in excess of the minimum wage, bringing in lay-over hours would be unlikely to bring the average below the minimum wage. Furthermore, even if there were occasional dips, there would be a limitation issue in respect of any alleged under-payment which occurred more than three months before the presentation of the claim. The EAT therefore dismissed the appeal.
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