Travel time and the National Minimum Wage
11 July 2024
Is travel time ‘time work’ for National Minimum Wage (NMW) purposes? This was the question addressed by the Employment Appeal Tribunal (EAT) in a recent decision concerning zero-hours poultry workers, who were required to travel to clients’ sites to perform their duties.
Facts of the case
Poultry workers were sent to work at clients’ farm premises to undertake their duties, which included providing injections, grading, loading and unloading poultry. Their employer provided a minibus to collect the workers from home and transport them to their first assignment. Journeys could take up to eight hours per day, meaning that the workers sometimes had to be collected in the early hours of the morning. Workers were paid for the travel time at the rate of £2.50 per hour.
In 2020, HMRC issued the employer with Notices of Underpayment, totalling around £62,000 arrears of pay plus penalties. HMRC considered that the time spent travelling to and from the farms should be remunerated at the NMW rate.
The employer challenged the Notices in the employment tribunal, which upheld the HMRC decision that the workers were undertaking ‘time work’ for NMW purposes. Under the NMW Regulations, ‘time work’ is work in respect of which a worker is entitled under their contract to be paid and includes hourly paid work. Regulation 34 provides that travel time can be treated as ‘time work’, if the worker would otherwise be working during that time (and unless the travelling is between the worker’s home and either their normal place of work, or an assignment). The tribunal took into account the level of control exerted over the workers in relation to the travel arrangements and considered the travel around the country was not a ‘normal commute’.
The employer appealed the tribunal’s decision to the EAT.
EAT decision
The EAT upheld the employer’s appeal against the Notices of Underpayment. It found that the time spent travelling to and from farms was not ‘time work’ under the NMW Regulations, meaning that the workers were not entitled to receive NMW in respect of the travel time.
The EAT was satisfied that the wording of the Regulations meant that travelling time for these workers could not be deemed ‘work’, even though there will be other cases when workers are engaged in ‘time work’ when travelling, such as those employed as drivers. The fact that the travel is for the purpose of carrying out work for the employer, or is travel that the worker is obliged by the employer to undertake, does not turn the travel into work for the purposes of the NMW Regulations.
The Birketts view
This decision means that such workers will not be entitled to receive the NMW in respect of time spent travelling from home to the location of their first assignment, if they are collected from home (or taken back at the end of the day). It is important to note that the EAT’s decision does not apply to workers who undertake work during periods of travel, or those for whom travelling is the core function of their role, such as drivers. It also does not apply to periods of travel required between different assignments during the working day, meaning that workers should be paid in accordance with the NMW in respect of that time.
Note that this decision concerns the definition of ‘work’ for the purposes of NMW entitlement only; it does not deal with the question of whether the workers were undertaking work in accordance with the Working Time Regulations 1998 (in which respect, the EAT may well have reached a different conclusion).
The EAT recognises that its decision may be considered as creating an “injustice” for the workers in question, but it is bound by the wording of the Regulations and it is a matter for Parliament to decide whether the legislation should be amended.
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Liz Stevens
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2024.