Baxter v Titan Aviation Ltd (National Minimum Wage) (Rev 1)

A worker’s entitlement to the national minimum wage depends on whether the relevant periods constitute work under the National Minimum Wage Regulations 1999. Periods spent overnight in accommodation before the next day’s assignment are not work where the worker performs no tasks or responsibilities and is required to stay only to be able to work the following day. Such periods are not ordinarily deemed to be work under regulation 15(1), because the worker is not required to be available to work during that period. In any event, regulation 15(1A) excludes sleeping time where suitable sleeping facilities are provided, unless the worker is awake for the purpose of working. The Working Time Regulations 1998 should not be used as the governing framework in a national minimum wage claim, although its authorities may sometimes assist on the basic concept of work.

The appellant was engaged as a casual driver. He brought claims under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the National Minimum Wage Regulations 1999.

At a pre-hearing review, the Employment Tribunal found that he was a worker but not an employee. His fixed-term claim was therefore dismissed. At a later hearing, the Tribunal dismissed his part-time worker discrimination and victimisation claims and rejected his claim concerning overnight lay-over periods. The appeal concerned whether the earlier status finding bound the parties, whether the victimisation claim had been properly rejected, and whether lay-over periods counted for national minimum wage purposes.

1. Part-time worker claim. The appeal was dismissed. The earlier finding that the appellant was not an employee was binding in the same proceedings, even though it had been made for the purpose of the fixed-term employee claim. The legal issue was the same for the part-time worker claim. Under regulations 2(3) and 2(4) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, an employee and a worker who is not an employee work under different types of contract and cannot be treated as comparable workers.
2. Victimisation. The Tribunal was entitled to dismiss the claim. The relevant period ran from the protected act to presentation of the claim. The evidence did not disclose a prima facie pattern of reduced work during that period. Later events might have been evidentially relevant in an appropriate case, but detailed examination of them was unnecessary here. The Tribunal’s reasoning on the alleged loss of free vehicle servicing was inadequate in description but its conclusion was inevitable on the evidence.
3. Lay-over periods. The only claim before the Tribunal was statutory. A distinct contractual claim based on an alleged promise of payment was not pleaded or pursued before the Tribunal and could not be raised on appeal.
4. For the national minimum wage claim, the question was whether the appellant was working during the lay-over periods. He was not. He was away from any place of work, performed no tasks and had no responsibilities. The overnight stay merely enabled him to reach the next day’s assignment.
5. Regulation 15(1) was not engaged. It concerns periods during which a worker must be available to do work if called upon during that period. The appellant was not liable to be called upon during the lay-over. Even if regulation 15(1) applied, regulation 15(1A) would exclude sleeping time because suitable sleeping facilities were provided and the appellant was not awake for the purpose of working.
6. The Tribunal had referred inappropriately to the Working Time Regulations 1998, but remittal was unnecessary because its factual findings established the answer under the correct statutory scheme. The appeal was dismissed.

• Employment Tribunal: At a pre-hearing review, the appellant was held to be a worker but not an employee, and his fixed-term claim was dismissed. At the subsequent hearing, his part-time worker discrimination, victimisation and lay-over claims were dismissed.
• Employment Appeal Tribunal: The appeals against those dismissals were dismissed.