Will overnight stay be considered ‘working time’ when considering national minimum wage?

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Posted on 13 Sep 2011

Many businesses will require employees to travel in the course of their employment and in some cases they will be required to attend early or late appointments some distance from home. Where that is the case, a reasonable employer might offer to cover the cost of a hotel stay near to the place of work to save the employee from a late journey home or an early start and significant travel. In these circumstances, will the time spent overnight be considered a period of work which requires payment of an amount which is at or above the national minimum wage?

The Employment Appeal Tribunal (EAT) recently had to deal with a claim of this kind in Baxter v Titan Aviation Limited. Mr Baxter was employed by Titan as a casual driver who was required to drive clients to and from their point of departure or arrival when travelling abroad.

On occasion, drivers would be asked to stay overnight in a hotel or B&B in order to make it easier to collect clients who were arriving at a known location the following morning. Titan paid their drivers a flat rate for these lay-over periods.

Mr Baxter brought a claim against Titan alleging that the pay which he received during these ‘lay-overs’ was less than the National Minimum Wage. When dealing with the claim at first instance the Employment Tribunal found that the lay-over was not ‘work’ for the purposes of the National Minimum Wage Regulations 1999 and in reaching this conclusion the Tribunal applied the provisions of the Working Time Regulations 1998. The Tribunal found that during the lay-over, Mr Baxter was free to do whatever he wanted and was not required to undertake any work.

Mr Baxter appealed to the EAT. The EAT upheld the Tribunal’s decision but stressed that Tribunals should not fall into the trap of applying the Working Time Regulations 1999 to a situation which was governed only by the National Minimum Wage Regulations 1998.

The EAT found on the facts that Mr Baxter was not working during the lay-over period and that the facts were not analogous to the situation of doctors, nightwatchmen, caretakers or security guards who are actively required to undertake duties or be ready and available to undertake duties during the overnight periods.

What does this mean for employers in practice?

This decision appears to be a matter of common sense but every situation where working time or minimum wage is the central issue will require an analysis of the specific facts in order to determine whether the period in question was a period when the employee was working or presenting themselves as available to work if required.

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