Richard Oulton appeared in the EAT for the successful Respondent in Baxter v Titan Aviation Ltd UKEAT/0355/10/SM. The EAT had to consider the case of a casual driver who occasionally had to stay overnight in a B&B or hotel in order to pick up passengers the next morning to take them to and from the airport.

In dismissing his claim that he should have been paid the national minimum wage for these periods, the EAT held that such "lay-over" periods did not constitute work for the purposes of the National Minimum Wage Regulations. The claimant was not working during the night, and (unlike, for example, the job of a night-watchman or night-sleeper) he could not be described as being "on-call" for the purposes of Reg 15 in circumstances where he was not liable to be called upon to work until the following morning. cf. Scottbridge Construction Ltd v Wright [2003] IRLR 21 and Burrow Down Support Services Ltd v Rossiter [2008] ICR 1072.

In any event, even if it was wrong on this, the EAT considered that the claimant would fall within the exception in Reg 15(1A) which provides that, where a worker is provided with suitable facilities for sleeping, he should only be treated as working when awake for the purposes of working. In this case, it was up to the claimant how much of any particular lay-over he in fact spent asleep; but in so far as he was awake, it would not be for the purposes of working.

The full text of the judgment is available at: http://www.employmentappeals.gov.uk/Public/results.aspx?id=6474.

Richard Oulton is an experienced employment law practitioner and accepts instructions on behalf of both Claimants and Respondents. Richard is the co-author of Disability Discrimination in Employment, which was published by Oxford University Press in 2009.