The Employment Appeal Tribunal has concluded that a peripatetic driver was not entitled to the National Minimum Wage for the time he spent overnight in a bed and breakfast so he could pick up clients and drive them to the airport first thing the following morning. This decision contrasts with earlier cases deciding that “sleepover” time is to be treated as working time.

The Claimant was free to do as he liked during these overnight stays, the only requirement being that he was on time to collect the client the following morning. That set him apart from workers like doctors and security guards who have to be on-call during the night. The employment tribunal had therefore been right to conclude that the driver was not doing work for the purposes of the NMW regime.

The EAT went on to remind tribunals of the need to preserve the distinction between time worked for National Minimum Wage purposes and working time under the Working Time Regulations. The two concepts overlap in many instances, but there are some significant distinctions, so the case law needs to be looked at carefully to establish the underlying legal issues. Employers setting up any kind of arrangement where a worker is paid a reduced rate of pay – or not paid at all – for sleeping over, would do well to look carefully at both sets of regulations