Was time spent travelling to and from farms on transport provided by the employer “time work” under the National Minimum Wage Regulations?
In a recent Employment Appeal Tribunal case (EAT) – Taylors Service Ltd (dissolved) and another v The Commissioners for HM Revenue and Customs [2024] EAT 102 – it was held that time spent travelling from home to and from the work place was not “time work” for the purposes of the National Minimum Wage Regulations 2015 (NMW Regulations 2015). Likewise, it could not be deemed “time work” under the travel time exception in regulation 34.
In this case, the workers were employed on zero hour contracts in the poultry industry. The employer provided a minibus to collect workers from their homes (or occasionally from the employer’s business premises) and transport them to their first assignment of the day. These journeys could be very long and sometimes required the workers to be picked up during the night to ensure they reached the assignment site in time for the working day. The workers had a contractual right to be paid on an hourly basis for travel to and from assignments, albeit at a rate of £2.50 per hour and not at national minimum wage rates.
In 2020, HMRC decided that the workers should have been paid at national minimum wage for the time spent travelling to and from farms. HMRC issued Notices of Underpayment equating to around £62,000 of wage arrears, in addition to penalties.
The employer challenged this decision. In the first instance, the Employment Tribunal held that the time that the workers spent travelling was “time work” for the purposes of NMW Regulations 2015. This was due to the level of control the employer exercised over the workers (time, route and method of travel being determined by the employer), the travel being an essential part of the role, and it being part of the workers’ contractual terms.
This decision was overturned by the EAT. It was held that “just” travelling should not be treated as work under regulation 30, unless the worker is carrying out “work” whilst travelling. The employer dictating the mode, timing or route of travel did not turn such travel into “work”, nor did the fact that the workers were contractually obliged to undertake the travel in this way.
It was held that whilst the travel in this case was clearly outside of an ordinary commute, ultimately, it was still travel from home to work, and should therefore not be classified as “time work” on a strict interpretation of the NMW Regulations 2015.
Interestingly, under regulation 34, if the workers attended the employer’s premises first, and then subsequently travelled to a client’s site, this would be deemed “time work” for the purposes of the NMW Regulations 2015. This is because the Regulations do clearly make a distinction between travel from home and travel from one work premises to another.
This decision has resulted in some sympathy for the workers, given the unusual lengthy commutes across the country that they were obliged to undertake as part of the role, and the distinction and disparity between those travelling from home against those travelling from the employer’s premises.
However, the EAT did strictly apply the legislation as it is drafted in this case, which unfortunately when applied to these unusual circumstances did result in what some would describe as an unfair decision.
Whether travelling constitutes “time work” for the purposes of the NMW Regulations 2015 can be complex and is often fact sensitive. It is important that this is properly considered to ensure that national minimum wage is, or is not, being paid in accordance with the legislation.
Should you need any advice on the payment of national minimum wage and in what circumstances this is required, please do not hesitate to contact a member of the Employment Team at Glaisyers ETL at employment@glaisyers.com
