Working time – different interpretations for the Working Time and National Minimum Wage Regulations

 

In a recent case, Baxter v Titan Aviation Ltd, the Employment Appeals Tribunal (EAT) has given an important reminder that the definition of time spent “at work” differs in two important pieces of legislation – the National Minimum Wage Regulations 1999 (NMWR) and the Working Time Regulations 1998 (WTR) – and has highlighted the potential danger of confusing 'work' for minimum wage purposes with 'working time' under the Working Time Regulations.

 

Mr. Baxter was a casual driver for Titan Aviation Ltd. He drove clients going on holiday to their point of departure. Like other drivers, he 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, Titan increased the rate paid for drivers’ normal hours increased but introduced a flat rate payment for 'lay-over' overnight stays.

 

Mr. Baxter then claimed that the flat rate payment that he received for his lay-over hours was equivalent to less than the national 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 WTR. Its reason for rejecting the claim, the tribunal was that, since Mr Baxter could do as he wished during the lay-over, provided he picked the client up on time and gave his employer the phone number of his accommodation, his position was not comparable with the situation of doctors, caretakers, security guards, etc who are on call during the night. Thus it established that Mr. Baxter not working during the lay-overs by reference to the WTR, before holding that he was not entitled to the minimum wage in respect of them.

 

Mr. Baxter then appealed to the EAT, but his appeal was dismissed.

 

Importantly, in ruling against him, the EAT stressed that only the NMWR were relevant to his claim for lay-over pay. The EAT thought it plain from the facts that there was no possibility whatever that could be regarded as working during his lay-over periods. He was not at his place of work, was performing no tasks and had no responsibilities.  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, but, in Mr Baxter’s case, the only reason for his lay-overs was so that he could get to work in the morning. Thus, Mr Baxter did not have to be 'available' for anything during his lay-over periods. His obligation to inform his employer  of his accommodation's phone number did not affect this analysis, since a  phone call would simply change the time at which the lay-over finished and B's work started, not alter the character of the lay-over itself.

 

This ruling is essentially helpful to employers, who could otherwise might have found themselves facing substantial costs where employees stay away from home overnight on business.