Particular benefits: late night taxis: first condition: later than usual and until at least 9pm
Section 248(2) (a) ITEPA 2003
In certain circumstances, there is an exemption from the benefit in kind charge that would otherwise arise where an employer provides a late night taxi for an employee to travel home from work.
The exemption can apply only where the 4 late night working conditions are satisfied (EIM21831), and is limited to the first 60 such journeys in a year.
The first of the late night working conditions is that the employee is required to work later than usual and until at least 9pm. See EIM21833 and EIM21834 for more information on the other conditions.
Employee required to work later than usual and until at least 9pm
Both legs of this condition must be satisfied.
In most cases, it’s clear whether an employee who works until at least 9pm is also required to work later than usual. Something is usual if it conforms to a common or ordinary pattern. Section 248(2)(a) is intended to ensure that the exemption applies in circumstances where an employee who normally finishes work before 9pm is required on occasion, to work later than usual and until at least 9pm.
The second leg of this condition is a question of fact. For some employees, it’s usual to work until 9pm or later, for others it’s not.
- Most employees who work in a restaurant or pub are required to work late most nights and until at least 9pm (unless perhaps they usually work a shift earlier in the day). Consequently, if a member of bar staff who usually works until closing time is provided with a taxi home when the pub shuts, the exemption does not apply because it’s usual for this employee to work late and until at least 9pm. The journey home is treated like any other ordinary commuting journey.
However, if an employee who normally goes home at 11.30pm is on occasion required to stay until 1am, perhaps because there’s additional clearing up to do after an unusually busy evening, this will still satisfy the later than usual condition.
When, as in this example, “later than usual” takes the employee into the following day, it will depend on the facts whether or not the late night working conditions can still be satisfied. But it’s unlikely that the public transport condition (see EIM21833) will be satisfied if the daytime public transport timetable for the following day has commenced.
- A secretary who normally works from 9am to 5pm is required by her manager to work late one evening to help finish a job. She works until 10pm and then the employer provides a taxi to take her home. As she was required to work later than usual, and until after 9pm, she satisfies the terms of the first condition of the exemption. See EIM21833 and EIM21834 to see whether the other late night working conditions are also satisfied. If, however, the employee had decided voluntarily to work until 10pm but had not been required to do so by her employer, the use of a taxi for her journey home would not satisfy the first condition as she had not been required by her employer to work later than usual.
- An employee is contracted to work from 12am to 8pm but commonly works until 10pm or later. This employee has an established pattern of late night working. Consequently, if the employer provides a taxi to take the employee home on a day when he has been required by his employer to work beyond his contracted hours and later than 9pm, but no later than his established working pattern, the exemption does not apply because he is not working later than usual.