Appeal No. UKEAT/0355/10/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 2011
	   Judgment handed down on 30 August 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR C EDWARDS

DR B FITZGERALD MBE LLD FRSA

MR K BAXTER	APPELLANT

TITAN AVIATION LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

REVISED

	APPEARANCES

For the Appellant	MR JEFFREY JUPP
(of Counsel)
Instructed through the Bar Pro Bono Unit
	
For the Respondent	MR RICHARD OULTON
(of Counsel)
Instructed by:
ASB Law LLP
Horizon House
Eclipse Park
Sittingbourne Road
Maidstone
Kent
ME14 3EN

SUMMARY

NATIONAL MINIMUM WAGE

PART TIME WORKERS

Appellant a casual driver for the Respondent – Brings claims for (a) discrimination contrary to Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000; (b) victimisation contrary to the PTWR; (c) discrimination contrary to reg. 6 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002; and (d) under-payment in respect of “lay-over” periods, being periods when he was required to stay in overnight accommodation following the conclusion of one job in order to be in a position to pick up for another job nearby – Claim under FTER dismissed at PHR on the basis that Appellant not an employee – At subsequent full hearing Tribunal dismisses remaining claims

Held (dismissing appeal):

THE PTWR CLAIMS

The claim was rightly dismissed because the “comparable full-time employee” on whom the Appellant relied was an employee and accordingly worked under a different kind of contract within the meaning of reg. 2 of the PTWR.  The Tribunal was bound by the finding at the PHR that the Appellant was not an employee, notwithstanding that it was made in the context of the FTER claim

The Tribunal was entitled on the evidence to dismiss the victimisation claim

THE LAY-OVER CLAIM

The only claim properly made was under the National Minimum Wage Regulations 1999: a distinct contractual claim advanced on the appeal on the basis that the Appellant had been promised payment for lay-overs on a more generous basis when he was engaged was not before the Tribunal

As regards the NMWR claim:

(1)	The Appellant was not working during lay-over periods

(2)	Nor should he be deemed to have been working under reg. 15 (1) of the NMWR, because he was not during those periods available to work (“on call”)

(3)	Even if, contrary to (2), reg. 15 (1) did prima facie apply, the case would fall within reg. 15 (1A)

Scottbridge Construction Ltd v Wright [2003] IRLR 21, Burrow Down Support Services Ltd v Rossiter [2008] ICR 1072, South Manchester Abbeyfield Society v Hopkins [2011] ICR 254 and Wray v J. H. Lees & Company (Brewers) Ltd (UKEAT/0102/11) referred to

Observations on the undesirability of referring to the Working Time Regulations 1998 in the context of a claim under the NMWR 

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1.	The Respondent is a holiday company.  One of the services which it provides is a “VIP home departure service”, whereby uniformed drivers pick up clients going on holiday from their homes and drive them to the airport or other point of departure.  Some of its drivers are permanent employees but some are as engaged as casuals.  

2.	The Appellant retired from his work as a computer programme engineer in late 1998.  He signed up with the Respondent as a casual in August 1999.  The way he worked was as follows.  He would supply the Respondent at regular intervals with a forward calendar of the days when he was available for work.  If it had work for him on one of those days he would be telephoned and offered the job, sometimes with many days’ notice but sometimes with much less.  He was free to accept or decline any job offered: in practice, he rarely declined.  He would pick up a car for each job at the Respondent’s depot at Gatwick (he lived in Crawley).  The pick-up point of the clients and the destination could be anywhere in the country, though other things being equal he would be more likely to be offered work beginning or ending near Gatwick.  The hours that he worked varied considerably.  Figures before the Tribunal showed that in some weeks – indeed occasionally in some months – he did no work at all; but in the weeks that he did work he might do anything from a handful of hours to fifty or more.  

3.	On 25 March 2009 the Appellant presented a claim against the Respondent in the Employment Tribunal making the following claims: 

(1)	discrimination contrary to reg. 5 (1) (a) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the PTWR”): the claim was that he was being paid less, pro rata, than the Respondent’s full-time employees; 

(2)	victimisation contrary to reg. 7 (3) of the PTWR: the claim was that after he made a complaint of discrimination on 12 February 2009 the work offered to him dropped off; 

(3)	discrimination contrary to reg. 6 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (“the FTER”): the claim was that he was being paid less, pro rata, than drivers on indefinite contracts and had less favourable overtime arrangements; and 

(4)	a claim that he was not properly paid for so-called “lay-over” periods: the details of this claim and its legal character are analysed more fully below.

4.	The qualifications to bring a claim, in terms of employment status, differ as between the PTWR and the FTER.  For the purpose of a claim under the PTWR it is necessary that a claimant establish that he is a worker as defined in reg. 1 (2), namely:

“… an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires) where the employment has ceased, worked under—
(a)	a contract of employment; or
(b)	any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

For the purpose of a claim under the FTER it is necessary that a claimant establish that he is an employee employed under a fixed-term contract: the term “employee” is not defined, but it is common ground that it has its usual meaning of a person employed under a contract of service.  

5.	The Respondent disputed that the Appellant was either an employee within the meaning of the FTER or a worker within the meaning of the PTWR.  Those issues were determined at a pre-hearing review conducted by Employment Judge Sage sitting at London South on 3 September 2009.  The Appellant was unrepresented; the Respondent was represented by Mr Richard Oulton of counsel.  By a Judgment with Reasons sent to the parties on 14 September the Judge held that the Appellant was a worker within the meaning of the PTWR but was not an employee for the purpose of the FTER and that accordingly his claim under the latter regulations – i.e. “claim (3)” above – could not proceed.  There was no appeal against that decision.  

6.	The Appellant’s remaining claims came before a Tribunal at London South, chaired by Employment Judge Hall-Smith, on 15 and 16 February 2010.  The Appellant was represented by a FRU representative and the Respondent again by Mr Oulton.  By a Judgment sent to the parties on 19 February the claims under the PTWR – both the “primary” discrimination and the victimisation claim – were dismissed; and so also was the lay-over claim.  Written Reasons were sent to the parties on 28 April.  

7.	The Appellant has appealed to this Tribunal against all aspects of that decision.  On the sift Keith J rejected the appeal as regards the PTWR claim but allowed the appeal as regards the lay-over claim to proceed.  At a subsequent hearing under rule 3 (10) of the Employment Appeal Tribunal Rules 1993, at which the Appellant had the advantage of representation by Ms Naomi Ellenbogen QC under the ELAAS scheme, Judge Birtles allowed the PTWR appeal to proceed on the basis of an amended Notice of Appeal.  

8.	Accordingly, there are before us appeals against both the dismissal of the two claims under the PTWR and the dismissal of the lay-over claim.

9.	The Appellant again has the advantage of pro bono representation, on this occasion from Mr Jeffrey Jupp of counsel.  The Respondent has been represented by Mr Oulton.  We have been much assisted by the submissions of both counsel: in particular, Mr Jupp’s skeleton argument was of great assistance in reading into the case.  

(A)	THE PTWR CLAIM: “PRIMARY” DISCRIMINATION

10.	The scheme of the PTWR is that a part-time worker is entitled to be no less favourably treated than a “comparable full-time worker” (see reg. 5 (1)).  “Comparable full-time worker” is defined in reg. 2 (4) as follows:

“A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place—
(a)     both workers are—
(i)	employed by the same employer under the same type of contract, and
(ii)	engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and
(b)	the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.”

Reg. 2 (3) provides as follows:

“For the purposes of paragraphs (1), (2) and (4), the following shall be regarded as being employed under different types of contract—
(a)	employees employed under a contract that is not a contract of apprenticeship;
(b)     employees employed under a contract of apprenticeship;
(c)     workers who are not employees;
(d)     any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract.”

11.	It was the Appellant’s case that he was less favourably treated than the Respondent’s full-time employed drivers: the particular individual whom he identified was a Mr Elkington.  The Respondent’s defence was that the Appellant and Mr Elkington were “employed under different types of contract” within the meaning of reg. 2 (3): Mr Elkington was an employee falling under head (a), whereas the Appellant had been held by Judge Sage to be a worker who was not an employee and thus to fall under head (c).  Accordingly Mr Elkington could not be “comparable”: see reg. 2 (4) (a) (i).  The Tribunal accepted that argument: see para. 15 of the Reasons.  

12.	The Appellant’s case on this appeal is that he was not at the material time employed on a different type of contract from Mr Elkington because on each occasion that he undertook an assignment he was employed under a contract of service for the duration of that assignment.  He relies on the line of authorities of which Cornwall County Council v Prater [2006] ICR 731 is the best known.  The difficulty with that submission is that Judge Sage had already held to the contrary at the PHR, and on the face of it that finding – made between the same parties in the same proceedings – is binding on the Appellant.  Mr Jupp made three points in response.

13.	First, he submitted that Judge Sage had not in truth decided the Prater point.  He pointed to a sentence in para. 17 of her Reasons which – read in isolation – might be taken to be saying only that the Appellant was not employed under a single over-arching (“umbrella”) contract.  With respect to Mr Jupp, this is hopeless.  The Appellant had quite explicitly disavowed at the PHR any suggestion that he was employed under any such contract.  His case was put squarely on the basis that he was employed in a series of successive “one-assignment” contracts.  It was that case which the Judge rejected: see in particular para. 16 of her Reasons.  

14.	Secondly, Mr Jupp submitted that the finding in question was not binding because it was made for a different purpose, namely in order to determine whether the Appellant had the necessary status to claim under the FTER, and not in the context of the present issue, namely whether his type of contract was different from that of his putative comparator under the PTWR.  We cannot see that that makes any difference: although the context in which it arose was different, the legal issue was the same.

15.	Thirdly, he pointed out that the Appellant had not been represented at the PHR and that it is clear that neither the parties nor the Tribunal appreciated that the finding which the Judge was being asked to make about his status for the purpose of the FTER would in practice be determinative also of the claim under the PTWR.  That seems to us factually correct as far as it goes, but we cannot see that it affords any basis for holding the decision of the Judge not to be binding.

16.	Accordingly the appeal against the dismissal of the claim of primary discrimination under the PTWR must be dismissed.  

(B)	THE VICTIMISATION CLAIM

17.	Reg. 7 of the PTWR proscribes the victimisation of workers who do a protected act in terms equivalent to that of the other anti-discrimination legislation and which are too well-known to require to be set out here.  The Appellant, as we have said, wrote to the Respondent on 12 February 2009 complaining of discrimination under the PTWR in terms which it is common ground gave rise to a protected act.  It was his pleaded case that by reason of his doing so the Respondent reduced the amount of work that it offered him.  He also raised in his evidence, though not in his pleading, an allegation that he was denied a perk which had previously been available of having his own car serviced for free by the Respondent’s mechanics.  

18.	The parties do not appear to have appreciated in their preparation for the hearing that the only period in respect of which the Appellant could claim was the period between the doing of the protected act on 12 February 2009 and the presentation of his claim on 25 March.  There was accordingly a good deal of evidence from both sides about the pattern of the Appellant’s work during the rest of 2009 and into 2010 and, insofar as there was a diminution when compared with previous years, the reasons for that diminution.  The Respondent’s Transport Operations Manager (also, coincidentally, a Mr Baxter) gave a detailed explanation of the factors affecting the availability of work generally and also pointed out that the Appellant had in fact for substantial periods declared himself unavailable for work.  The Tribunal in its Reasons did not engage with any of this detail.  It pointed out, at para. 27 of the Reasons, that it was only concerned with a period of some six weeks.  It continued, at para. 28:

“We accept the Respondent’s evidence that at the material time against the economic background that there was a downturn in work.  In any event the Respondent had allocated work for February 2009 to its drivers before the date of the protected act.  On the evidence we were unable to detect any pattern evidencing a situation in which the Claimant had been singled out or targeted for particular treatment namely a reduction in work allocated to him or failure to provide him with any work.  The Claimant himself failed to provide documentary evidence namely copies of his diaries which would have informed the Respondent of the date of his availability.”

19.	Ground 7 in the Amended Notice of Appeal produced by Ms Ellenbogen reads as follows:

“7.	In dismissing the Claimant’s claim under Regulations 7 and 8 of the PTWR, the Tribunal erred in law and/or reached perverse conclusions as follows:
7.1.	Having regard to the evidence which it had, and that to which it had not, received, it should have drawn the conclusions set out at sub-paragraphs 27(d) to (r) of the Second NoA.
7.2.	Further and in any event, the Respondent’s conduct after the date of claim as, at the very least, evidentially material to the period to which the claim itself related.  However, the Tribunal failed to:
7.2.1.	identify the period to which it considered the claim to relate (The closest it came to doing so was at paragraph 27 where it, cryptically, ‘bore in mind that the claim form was presented…on 25 March 2009’, without identifying to what end.); and/or, in any event,
7.2.2.	make findings as to any period other than February 2009;
7.2.3.	support its acceptance of the Respondent’s contentions by reference to any specific piece of evidence;
7.2.4.	identify the basis upon which it had rejected the Claimant’s contentions;
7.2.5. permit the Claimant to challenge the evidence put forward by the Respondent;
7.2.6.	in all the circumstances, produce a Judgment which was Meek-compliant.”

(The reference in para. 7.1 is to a Notice of Appeal submitted by the Appellant himself, which had been rejected under rule 3 (7), making a large number of points on the facts which we need not set out here.)  

20.	Mr Jupp in his oral submissions accepted that the Respondent’s conduct after the date of claim was not, as such, in issue.  Nevertheless, he submitted, as Ms Ellenbogen had done, that it was evidentially material and should accordingly have been considered in detail.  We do not accept this.  If there had been evidence of a sufficiently significant drop-off in work in the six-week period which was the subject of the claim, then no doubt in principle the pattern of subsequent events could have been relevant in assessing the reason for that diminution.  But there was no real evidence of such a drop-off before the Tribunal.  The Tribunal found that allocations for February would have been made before receipt of the Appellant’s letter of 12 February, so that they could not have been affected by it. We are thus concerned only with a period of just over three weeks.  There appear to have been no precise figures before the Tribunal for those three weeks, but even if – as was probably the case – he was offered no work in that period that is not a particularly striking fact.  In two of the first three weeks of March 2008, i.e. the previous year, he also did no work, and in the remaining week he only did sixteen hours.  He did a little more work, but not much, in the equivalent weeks in 2006 and 2007.  Not even a prima facie case could be raised on these figures.  In those circumstances it does not seem to us necessary that the Tribunal should have undertaken the exercise of examining in detail the pattern shown later in the year: the detail into which it is necessary for a tribunal to go must be proportionate to the degree of relevance of the evidence in question.  In our view the Tribunal’s reasoning in para. 28 was sufficient to let the Appellant know why he had not succeeded on this part of the victimisation claim: it did not see any pattern in the relevant period such as might raise an inference of discrimination. 

21.	As regards the claimed loss of the benefit of free servicing of his car, the Respondent took the point that no such claim had been pleaded.  But the Tribunal did not reject the claim on that basis.  Instead it said simply, at para. 29 of the Reasons: 

“We did not conclude on the evidence that the Claimant had been subjected to any detriment in relation to terms and arrangements for the servicing of his cars.”

The Tribunal ought in our view to have summarised, however shortly, what the available evidence amounted to, and to have explained why it reached the conclusion that it did.  However, we do not believe that that failure is sufficient to vitiate its conclusion in law.  We have seen the relevant passage in the Appellant’s witness statement, which amounts only to a bald statement that “I also cannot get my vehicles serviced” (para. 30).  We have also seen the statement of the other Mr Baxter, which explains that the benefit in question was only available at certain times and that the workshop was very busy in early 2009.   We were not told of any relevant oral evidence.  Certainly there was no evidence that the Appellant had asked to have his car serviced, and had had the request refused, in the very limited period between the letter of 12 February and the presentation of his claim.  In these circumstances the Tribunal’s finding seems inevitable.  

22.	We accordingly dismiss the appeal against the dismissal of the victimisation claim.

(C)	THE LAY-OVER CLAIM

23.	The Respondent’s drivers would sometimes be asked to stay overnight in a hotel or B&B in order to be able to pick up passengers in the morning.  Typically this would occur where the driver had done a job the previous day with a drop-off point fairly near the next day’s pick-up point – or at least nearer to it than if he or another driver had had to come from their base.  (An example given by the Appellant in his witness statement is of dropping off passengers in Worcestershire and then driving to Cumbria and staying overnight before picking up other passengers in the Lake District and Lancashire and driving them to Heathrow and Gatwick.)  The time spent in the overnight accommodation was described as “lay-over” time.  The Appellant in his witness statement uses the term “lay-over” to cover also day-time hours spent in between successive jobs (i.e. in a case where he was asked to do two jobs in the same day without returning home).  In the oral submissions before us counsel disagreed as to whether such periods were properly described as “lay-over” and as to whether drivers were paid for them.  But the point is of no significance since the Appellant’s claim at all stages - as pleaded in the ET1, as formulated at the CMD which followed the PHR before Judge Sage, and as put in his representative’s written submissions before the Tribunal - clearly related only to overnight lay-overs. 

24.	When the Appellant first started to work for the Respondent, drivers were paid for lay-over time at half the hourly rate (together with the cost of accommodation); but the system changed from August 2006, when there was an increase in the rate paid for normal hours but the substitution of a flat rate of £15.30, later raised to £15.70, for any lay-over period.  This latter sum was described in the pay-slips as a payment for ten hours at £1.57 per hour; but it was the evidence of both parties that the full sum was paid whatever the length of the lay-over period, which would often or indeed usually be less than ten hours.  (In the agreed statement of the issues – see para. 27 below - it was said to be “not disputed” that during overnight stays the Appellant “would be paid £1.57 per hour”; and the Tribunal understandably recites that at para. 4 of the Reasons.  But it was common ground before us that that way of putting it is, for the reason given above, inaccurate.)  

25.	It is the Appellant’s case that the pay that he received for his lay-over hours was less than his legal entitlement; but the basis of that case needs to be unpacked.  The Tribunal understood it to be based (though subject to a complication about the Working Time Regulations 1998 which we consider below) on the National Minimum Wage Regulations 1999 (“the NMWR”): that is, that when the hours spent on lay-over and the pay in respect of those hours were put into the equation for the relevant reference periods the average came to below the prescribed minimum hourly rate.  But the Appellant on this appeal claims that he was also advancing a straightforward contractual claim – or, rather, two alternative contractual claims: the first is that he says that when he was first engaged by the Respondent he was given to understand that he would be paid at the normal hourly rate for any lay-over periods; the second is that the Respondent was in any event not entitled to change the half-rate arrangement for lay-over hours which had prevailed until August 2006.  The Appellant complains that the Tribunal failed to consider either of those claims.  

26.	In our view no such contractual claim was before the Tribunal.  The Appellant’s claim form was drafted without legal assistance, and the various claims being advanced in it are rather mixed up.  It is true that he does say, in section 6 of the form (which is in fact the section designed for discrimination claims – but that by itself would not be a problem), that when he was first engaged he was told that he “would be paid for the hours ‘overnight’” and that he was initially paid half that rate and latterly at only £1.53/£1.57 per hour.  But that is said in the context of explicit references to the PTWR, FTER and NMWR; and in section 8 of the form, where he ticked the box for “unpaid wages”, he claims £20,245 and says “I believe I am entitled to this payment as my employer has not complied with the regulations identified and has underpaid me”.  We do not think that the form would naturally be read as raising anything except claims under the three sets of regulations pleaded.  We would nevertheless be loath to hold that a litigant in person was bound by an arguably ambiguous pleading if he had not had the opportunity to clarify his case.  But he did have such an opportunity.  The record of the CMD following the PHR before Judge Sage records that “the issues were discussed with the parties and it was agreed that the issues were as follows”.  The claim in relation to lay-over is stated as follows:

“The Claimant maintained that he was paid less than the National Minimum Wage during overnight stays.  It was not disputed that during overnight stays he would be paid £1.57 per hour.  The issue for the Tribunal is therefore:

(a)	Is the overnight stay working time or is it a rest break for purposes of the Working Time Regulations and if so;

(b)	Should the Claimant be paid a National Minimum Wage for that working time ?”

We return below to the relevance of the references to the Working Time Regulations; but what matters for present purposes is that the claim being advanced is clearly, and clearly only, a statutory claim.  There is no trace of a contractual claim in the written submissions lodged with the Tribunal by his representative.  The fact that, as Mr Jupp submitted, the factual basis for such a claim could be identified in the Appellant’s witness statement is neither here nor there.

27.	Accordingly the Appellant cannot rely on the pure contractual claim.  We turn to the claim based on the NMWR.  Formally, this was a claim, under Part II of the Employment Rights Act 1996, to enforce the notional contractual right accorded by section 17 of the National Minimum Wage Act 1998.  Mr Jupp reminded us that under section 28 of the Act the burden was on the Respondent to show that the Appellant did not qualify for the national minimum wage; but that is of no significance to the issues on this appeal, since section 28 is concerned with the question of formal qualification under section 1 (2) of the Act, which is not in issue.  

28.	We need not for present purposes give any elaborate summary of the provisions of the NMWR.  The exercise required in any claim under them is to establish what rate has been paid in respect of the pay reference period in question (being, in all ordinary cases, one month: see reg. 10 (1)).  As to that, the fundamental provision is reg. 14, which reads as follows:

"(1)	The hourly rate paid to a worker in a pay reference period shall be determined by dividing the total calculated in accordance with paragraph (2) by the number of hours specified in paragraph (3).

(2) 	The total referred to in paragraph (1) shall be calculated by subtracting from the total of remuneration in the pay reference period determined under regulation 30, the total of reductions determined under regulations 31 to 37.

(3) 	The hours referred to in paragraph (1) are the total number of hours of time work, salaried hours work, output work and unmeasured work worked by the worker in the pay reference period that have been ascertained in accordance with regulations 20 to 29A."

The primary issue raised by the Appellant’s claim is whether during lay-over periods he was doing “work” for the purpose of para. (3).  Although the paragraph specifies four different kinds of work – “time work”, “salaried hours work”, “output work” and “unmeasured work” (defined in regs. 3-6 respectively) – the distinction is only made because the different kinds of work raise particular problems of detailed calculation, and it is not of fundamental significance for present purposes: what matters is whether the worker was “working” during the hours in question.  However, it was common ground before us that if the Appellant was working during his lay-over periods that work was time work, and we should therefore for completeness set out reg. 3, which reads as follows:

“In these Regulations “time work” means—

(a)     work that is paid for under a worker's contract by reference to the time for which a worker works and is not salaried hours work;
(b)     work that is paid for under a worker's contract by reference to a measure of the output of the worker per hour or other period of time during the whole of which the worker is required to work, and is not salaried hours work; and
(c)     	work that would fall within paragraph (b) but for the fact that the worker is paid by reference to the length of the period of time alone when his output does not exceed a particular level.”

29.	The NMWR do not contain any definition of “work”, but regs 15-19 contain a number of detailed provisions clarifying what does or does not count as work in particular situations.  For present purposes we need set out only parts of reg. 15, as follows:

“(1) Subject to paragraph (1A), time work includes time when a worker is available at or near a place of work for the purpose of doing time work and is required to be available for such work except where –
(a) the worker’s home is at or near the place of work; and
(b) the time is time the worker is entitled to spend at home.
(1A)  In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping time during the hours he is permitted to use those facilities for the purpose of sleeping should only be treated as being time work when the worker is awake for the purpose of working.”

As Elias P pointed out in Burrow Down Support Services Ltd v Rossiter [2008] ICR 1072, at para. 14 (p. 1175 C-D), para. (1) of reg. 15 is a deeming provision (and para. (1A) is parasitic on para. (1)).  It is designed to apply to the case where the employee is not working but is available  “for the purpose of doing work”. 

30.	Those are the only relevant provisions.  The Appellant, however, in his claim form included a reference to the Working Time Regulations 1998 (“the WTR”) and, as we have seen (see para. 27 above), that found its way into the definition of the issues agreed at the CMD and likewise into his written submissions before the Tribunal.  The Tribunal carried over those references to the WTR into the Reasons: in particular, it set out (at para. 20 of the Reasons), and appeared to apply in reaching its conclusion, the definition of “working time” from reg. 2 of the WTR.  It is now common ground that that approach was formally wrong.  It is true that claims under the WTR and the NMWR will often require consideration of very similar questions (and may indeed arise in the same cases – as, for example, in MacCartney v Oversley House Management [2006] IRLR 514 and Hughes v Graylyns Residential Homes (UKEAT/0358/08)); and it would seem as a matter of common sense that in most cases the answers to the question of what hours a worker “works” for the purpose of the NMWR and of what constitutes “working time” for the purpose of the WTR should be the same.  But the fact remains that the provisions are quite differently structured and worded and have different legislative origins (one deriving from an EU Directive and the other being entirely home-grown); and it is wrong in principle, and liable to produce a confused analysis, to refer to one set of Regulations in a case brought under the other.  And in any event the detailed provisions of regs. 15-19 of the NMWR have no equivalent in the WTR, and in the marginal situations which those regulations cover there may be cases, as Judge Reid pointed out in the South Manchester Abbeyfield case referred to below (see para. 38, at p. 264H), where that leads to particular periods of time constituting working time for the purpose of the WTR but not falling to be taken into account for the purpose of the NMWR.  We have to say therefore that it is unfortunate, though understandable, that the Tribunal failed to question the formulation of the issues agreed at the CMD.  (The parties and the Tribunal may, however, be comforted to know that they are not alone in making this mistake: see the recent decision of this Tribunal in Wray v J. H. Lees & Company (Brewers) Ltd (UKEAT/0102/11).)  

31.	We should perhaps add that it does not follow from these observations that it will always be inappropriate to consider the authorities on the WTR in the context of a NMWR claim: as regards the basic concept of what constitutes work, as distinct from the specific deeming provisions, they may contain useful discussion.  But if such reference is made it should be with real caution and it should never lead to the tribunal focusing on the language of the WTR rather than on the provisions of the NMWR.  

32.	The Tribunal gives its reasons for holding that lay-over periods did not fall to be taken into account at para. 23 of the Reasons, as follows:

“In our judgment we conclude that the time spent by the Claimant after he had arrived at his destination was not working time.  The Claimant was completely free to do as he wanted and his only requirement was that he should be on time to pick up the client the following morning and inform the Respondent of the phone number of his overnight accommodation.  The Tribunal accepted the submission of Mr. Oulton on behalf of the Respondent that the arrangement for the Claimant’s overnight stays was very far removed from the situation of doctors, night-watchmen, caretakers, security guards etc., who are paid to be on-call during the night.  We conclude that the Claimant was not entitled to the national minimum wage for the hours spent by the Claimant when on layovers.”

33.	That reasoning is clearly affected by the inappropriate reference to the WTR discussed above: the first sentence directly refers to “working time”, which is the central concept in the WTR but is not a phrase used in the NMWR, and the second sentence appears to be directed at the definition in reg. 2 of the WTR, which refers to whether the worker is “at his employer’s disposal and carrying out his activity or duties”.  But it does not follow that the case must be remitted to the Tribunal for consideration on the correct basis.  As we have acknowledged above, although the relevant provisions are different, the questions arising under the WTR and the NMWR overlap to a very considerable extent: for example, the question whether the worker is at his employer’s “disposal” is clearly relevant to, though it is not as such dispositive of, the question whether he is “working”.  If, albeit while formally addressing the wrong question, the Tribunal has found facts from which the answer to the right question is clear we can and should decide the issue ourselves.  Mr Jupp accepted that and addressed us on that basis.

34.	The first step is to consider whether during a lay-over period the Appellant was doing “work” irrespective of the provisions of reg. 15: as noted above, reg. 15 is in the relevant respects a deeming provision, requiring a worker to be treated as working during a period when he is in fact not working, and accordingly to go to it first is to put the cart before the horse.  We were referred to a number of well-known authorities concerning employees who were required to be at their place of work overnight but were allowed to sleep.  These were recently reviewed in detail by this Tribunal, HH Judge Reid QC presiding, in South Manchester Abbeyfield Society v Hopkins [2011] ICR 254, and we added some further discussion in Wray.  We need not go into them, since the factual situation here is more straightforward than that considered in those cases.  In our view it is plain that the Appellant was not working during his lay-over periods.  He was not at his place of work.  He was performing no tasks and he had no responsibilities, even of the contingent kind characteristic of the job of a night-watchman or a night-sleeper (cf. Scottbridge Construction Ltd v Wright [2003] IRLR 21 and Burrow Down (above)).  The only reason for the obligation that he spend the night in the accommodation in question was so that he should be in a position to get to work the following morning.  If there is any analogy it is with travelling time, i.e. time which a worker is required to spend getting to the place where he or she will do their work: that is treated in the NMWR as not prima facie being time during the worker is working, but it is the subject of deeming provisions (see regs. 15 (2), 16 (2), 17 (1) and 18 (1)).

35.	The question then is whether lay-over periods are caught by reg. 15 (1), which we set out at para. 30 above.  In our view it is probably possible to regard the intended pick-up point as a “place of work”; and at first sight it might seem that the Appellant was at or near that point (sc. in the overnight accommodation) “for the purpose of doing time work” – i.e. collecting and driving the clients to their destination – and was “required to be available for such work”.  But on a more careful analysis we do not think that that is the case.  In our view reg. 15 (1) – and likewise reg. 16 (1) - is directed at the case where the worker is required to be available for a particular period in order to do work, if called upon, during that period: the reason why an employee who is on-call between, say, 8 p.m. and 8 a.m. is entitled to have those hours counted (subject to the “at home” exception in para. (1) itself and the “sleeping facilities” exception in para. (1A)) is because at any time in those hours he may be called upon to work.  In the present case, by contrast, the Appellant was not liable to be called on during the lay-over period: he does not have to be “available” for anything.  As we have said above, the requirement that he stay at the accommodation was simply so that it should be practically possible for him to perform his duties the next day.  That is not, save perhaps in a very loose sense, a question of availability at all.  Mr. Jupp referred to the Tribunal’s finding that the Appellant was obliged to give the Respondent the phone number of the accommodation where he was staying and said that the evidence was that that was so that he could be informed of any change in the arrangements for the next day’s job – which might include, he submitted, an earlier pick-up time.  That seems likely enough, but it does not seem to us to affect the legal analysis.  In such a case all that would be happening would be that the time at which the lay-over finished and the Appellant’s work started would alter: it does not change the character of the lay-over itself.  

36.	We accordingly do not believe that the case falls within reg. 15 (1).  But even if it does it would seem to us clearly to fall within para. (1A).  The Appellant would be being supplied with “suitable facilities for sleeping”.  It would be up to him how much of any particular lay-over period he in fact spent asleep; but in so far as he was awake it would not be “for the purpose of working”.  

37.	In our view, therefore, the Tribunal reached the right result, albeit that its reasoning was imperfectly expressed.  The appeal on the lay-over claim is therefore dismissed.  

38.	Mr Oulton submitted that even if we differed from the Tribunal on the question whether lay-over time fell to be taken into account for the purpose of the NMWR the claim was bound to fail in any event.  The Appellant appears, at least when he initiated these proceedings, to have been under the impression that it was necessary only that he show that his pay for the lay-over hours themselves was at less than the national minimum wage rate.  That is of course wrong.  All that the Appellant would have been entitled to if he was to be treated as working during the hours in question was to have those hours (and the payments for them) taken into account in assessing whether, on average, he had received at least the statutory rate in respect of each month.  Mr Oulton submitted to the Tribunal, on the basis of schedules which he produced, that the Appellant was in fact paid more than the national minimum wage in every month from 17 May 2000 until January 2009, with the exception of one month in 2007 in respect of which he was long out of time to claim.  At para. 24 of the Reasons the Tribunal appears to accept that submission; and indeed that finding is not formally challenged in the Notice of Appeal.  However, there may be a question about exactly what the schedules show and the basis on which they were compiled; and we prefer to express no concluded view on this alternative basis of upholding the Tribunal’s decision.  We are, however, prepared to say that, given that the Appellant’s rate for “normal” hours was substantially in excess of the minimum wage, it seems on the face of it rather unlikely that bringing in lay-over hours would bring the average below the minimum.  We should also add that even if there were occasional dips below the level, there would be a limitation issue in respect of any alleged under-payment which occurred more than three months before the presentation of the claim.