Baxter v Titan Aviation Limited UKEAT/0355/10
Mr Baxter worked as a casual driver for Titan. His job included picking up holidaymakers from their homes and dropping them off at their part of departure. Sometimes he stayed overnight in accommodation between jobs so he was able to pick up clients the next day (lay-over time). He was paid a flat rate of £1.57 for lay-over periods. He claimed that by taking into account the lay-over periods his average hourly rate was less that the National Minimum Wage.
The tribunal held that lay-over time was not working time and he appealed. His appeal was dismissed. The tribunal had been wrong to apply the definition of working time under the Working Time Regulations to a claim under the National Minimum Wage Regulations. The questions that should be asked were, was he working during a layover period? If not was he available for work (and therefore deemed to be working)? If he was available for work and permitted to use sleeping facilities, was the time he spent awake for the purpose of working? Mr Baxter was not working during the lay-over periods. He was only required to spend the night in the accommodation in order to get to work the following morning. This could be considered as analogous with travelling time which under the National Minimum Wage Regulations Is not working time. He was not on call and available for work, so his claim failed.
Key point: Employers who have sales people on the road and overnighting should take note of the possible significance of this case for their business.
