Work or working time?
Labour & European Law Review Weekly Issue 244 17 November 2011
The National Minimum Wage Regulations (NMWR) set out what does and does not count as “work”, while the Working Time Regulations (WTR) define what is “working time”. In Baxter v Titan Aviation Ltd, the Employment Appeal Tribunal (EAT) said that although the answer to the question of what constitutes “work” will often be the same, Tribunals must be careful not to refer to one set of Regulations in a case brought under the other.
Mr Baxter worked as a casual driver for Titan Aviation, picking up clients from their homes and driving them to the airport or other point of departure. Sometimes the drivers were asked to do lay-over periods, when they stayed overnight in a hotel or B&B to pick up passengers in the morning.
When he first started working for the company, Mr Baxter was paid half the hourly rate for lay-over time but this changed in August 2006 to a flat rate of £15.30, later increased to £15.70.
In March 2009, he made a number of claims including one stating that the pay he received for the lay-over periods was less than the minimum wage.
The Tribunal decided that the time that Mr Baxter spent during the “lay-over” was not working time, as he was free to do what he wanted, as long as he picked up the client on time the following morning and gave his employer the telephone number of where he was staying.
It said that Mr Baxter’s situation was very different from the situation of doctors, night-watchmen, caretakers, security guards etc, who were paid to be on-call during the night.
The EAT rejected Mr Baxter’s appeal. It said that although the Tribunal had reached the right conclusion, it had mistakenly applied the definition of “working time” from the Working Time Regulations instead of the NMWR. These stipulate that “time work” only includes time when a worker is “available” to work and is “at or near the place of work”.
In the EAT’s view, it was obvious that Mr Baxter was not working during the lay-over periods, nor was he at his place of work. He was “performing no task and he had no responsibilities, even of the contingent kind characteristic of the job of a night-watchman or a night-sleeper”. The only reason he was sleeping over was so that he could get to work the following morning and did not have to be “available” for anything.
If it was wrong in this analysis, the EAT said that the case would fall within Regulation 15(1A) of the NMWR relating to workers provided with ‘suitable facilities for sleeping’ and who are only treated as working 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’. The EAT therefore dismissed the appeal.
The EAT also pointed out that although the answer to the question of what constitutes “work” for the NMWR and “working time” for the WTR will often be the same, Tribunals must be careful not to refer to one set of Regulations in a case brought under the other.