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Background: The National Minimum Wage Regulations 2015 (NMW Regulations) say that the NMW is payable by the employer for every hour in which the employee is working or is treated by the NMW Regulations as working (‘time work’).
Facts: The employer engaged zero-hours workers and supplied them to various poultry farms across the UK to provide their services. They were picked-up by their employer’s minibus from their home addresses. These journeys were often lengthy (up to eight hours travel per day) and although the workers were paid for this travel, it was at a reduced rate of £2.50 per hour.
In 2020, HMRC decided that this travel time was ‘time work’ and should be remunerated at the NMW. It issued Notices of Underpayment to the employer amounting to around £62,000 in wage arrears, plus penalties. The employer challenged these Notices.
Tribunal decision
The Tribunal said the time the workers’ spent travelling was ‘time work’. Mainly because the employer obligated its workers to travel on its minibus. This level of control meant the workers’ commute was not a standard commute (which is not ‘time work’). Rather travelling was ‘part and parcel of this type of job’ and should be paid at NMW.
The employer appealed.
EAT decision
The EAT upheld the appeal. It said that travel from home to place of work is only ‘time work’ if there is work being done while travelling. The mere fact that the travel on the minibus was obligated by the employer did not turn the travel into work. The ‘time work’ only began on the workers’ arrival at their destination and ceased when their poultry work was done and they waited for the minibus to take them home.
However, the EAT noted that if the workers had been required to attend their employer’s business premises before travelling to the farms, the subsequent travel time would have been ‘time work’ and the NMW would have been payable.
Implications: This decision means that workers who get picked up or dropped off at home by their employer do not need to be paid the NMW for that travelling time. However, there are some exceptions:
NMW must be paid for these tasks.
It’s important to note that this decision only focuses on NMW pay and doesn’t address whether the time counts as ‘work’ under the Working Time Regulations 1998, which might have a different outcome.
Employers should double-check their travel policies to see if certain arrangements could count as ‘working time” and need to be paid.
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