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The Regulations
The Regulations
I am grateful to the EAT for its lucid summary of the Regulations, which I have found very helpful. The Regulations are the regulations made, among other powers, under section 2(3) of the Act. As the EAT noted (judgment, paragraph 6), the Regulations do not define ‘work’, other than by expressly providing that some activities are not ‘work’ (in regulations 3, 57 and 58). As the EAT also noted, section 28 of the Act requires an ET to assume that a worker has been paid at a rate which is less than the NMW unless the employer can show otherwise.
Regulation 6 defines a ‘pay reference period’ as a month, or, if shorter, any period by reference to which a worker is paid. Regulation 7 is headed ‘Calculation to determine whether the [NMW] has been paid’. It is a deeming provision. It provides that a worker ‘is to be treated as remunerated by the employer in a pay reference period at the hourly rate determined by the calculation R/H - where “R” is the remuneration in the pay reference period determined in accordance with Part 4; “H” is the hours of work in the pay reference period determined in accordance with Part 5’ (my emphasis).
Part 5 starts with regulation 17, which provides that the hours of work in the pay reference period ‘are the hours worked or treated as worked by the worker in the pay reference period’ as determined by various Chapters in Part 5, which deal with four different types of ‘work’ (my emphasis). Those are ‘salaried hours work’, ‘output work’, ‘unmeasured work’, or ‘time work’. Time work, which is the type of work in this case, is dealt with in Chapter 3. Chapter 5 is headed ‘Hours worked for the purposes of the [NMW]’.
Regulation 20 provides for travel.
‘20. Hours spent travelling
In this Part, references to ‘travelling’ include hours when the worker is –
in the course of a journey by a mode of transport or is making a journey on foot;
waiting at a place of departure to begin a journey by a mode of transport;
waiting at a place of departure for a journey to re-commence either by the same or another mode of transport, except for any time the worker spends taking a rest break; or
waiting at the end of a journey for the purpose of carrying out duties, or to receive training, except for any time the worker spends taking a rest break.’
The primary definition of ‘time work’ is in regulation 30, which is headed ‘The meaning of time work’. I say ‘primary’, because the following provisions expand on that primary definition. Regulation 30 provides:
‘Time work is work, other than salaried hours work, in respect of which a worker is entitled under their contract to be paid –
by reference to the time worked by the worker;
by reference to a measure of output in a period of time where the worker is required to work for the whole of that period; or
for work which would fall within sub-paragraph (b) but for the fact that the worker having an entitlement to be paid by reference to the period of time alone when the output does not exceed a particular level.’
Regulations 31 to 35 make that further provision about time work. The emphases in the quotation below are all mine.
‘31. Determining hours of time work in a pay reference period
The hours of time work in a pay reference period are the total number of hours of time work worked by the worker or treated under this Chapter as hours of time work in that period.
Time work where the worker is available at or near a place of work
Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.
In paragraph (1), hours of work when a worker is ‘available’ only includes time when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides facilities for sleeping.
Training treated as hours of work
The hours a worker spends training, when the worker would otherwise be doing time work, are treated as hours of time work.
Travelling treated as hours of time work
The hours when a worker is travelling for the purposes of time work, where the worker would otherwise be working, are treated as hours of time work unless the travelling is between –
the worker’s home, or a place where the worker is temporarily residing otherwise than for the purposes of working, and
a place of work or a place where an assignment is carried out.
In paragraph (1), hours treated as hours when the worker would ‘otherwise be working’ include –
hours when the worker is travelling for the purposes of carrying out assignments to be carried out at different places between which the worker is obliged to travel, and which are not places occupied by the employer;
hours when the worker is travelling where it is uncertain whether the worker would otherwise be working because the worker’s hours of work vary either as to their length or in respect of the time at which they are performed’.
Hours not treated as time work
The hours a worker is absent from work are not treated as hours of time work, except as specified in regulations 32 to 34.
The hours a worker spends taking part in industrial action are not hours of time work.
The hours a worker spends taking a rest break are not hours of time work.
A worker is not to be treated as taking a rest break during hours which, in accordance with regulation 34, are treated as hours of time work’.
The EAT noted in paragraph 12 that other Chapters in Part 5 make similar provision about travel (in regulations 27(1)(c) and 39). Regulation 47, dealing with unmeasured work, is in somewhat different terms.
The EAT considered ‘ordinary commuting’ and the relationship of regulation 10(n) of the Regulations with 338 of the Income Tax (Earnings and Pensions) Act 2003. I refer the interested reader to paragraphs 13-17 of the judgment. I need say no more about it, as Miss Hughes confirmed in her oral submissions.