In the case of Taylor’s Services Ltd v HRMC, zero-hours workers travelled to farms around the country providing poultry services. They were picked up by their employer’s minibus from their home addresses. HMRC then proceeded to issue a notice of underpayments of national minimum wage (NMW) to their employer.
HMRC concluded that time spent by the workers travelling by minibus to and from their home addresses to several farms ought to be paid at national minimum wage. The employment tribunal agreed with this position, taking a consecutive approach to Regulation 30 and 34 of the National Minimum Wage Regulations 2015.
The Employment Appeal Tribunal disagreed and held that time spent ‘just’ travelling is not “time work” for the purposes of Regulation 30 unless it is deemed to be such by Regulation 34. Regulation 34 states that travel from home to place of work is not “time work”. Unless there is ‘work’ being done while ‘travelling’, the time spent on that activity cannot be ‘work’ for the purposes of Regulation 30. The mere fact that the travel is travel that the worker is obliged by the employer to undertake – using their minibus – does not turn the travel into work.
The EAT did recognise that this led to an injustice: “If the employer requires the employees to be collected from, and returned to home, then they are not (on my analysis) entitled to NMW, but if the employer requires them to come to its premises first, then the subsequent travel is deemed by regulation 34 to be “time work” and the NMW is payable”. The EAT set aside the employment tribunal’s decision and allowed the employer’s appeal against the notices of underpayments of NMW that had been issued by HMRC.
For your information, the National Minimum Wage (NMW) regulations require employers to pay the NMW for all hours worked. This includes certain types of travel time:
- Travel between job sites: Travel time between different job locations during the workday is considered working time and is included in calculating whether the worker has been paid at least the NMW.
- Travel for job-related duties: Travel during the workday, such as travel to attend work meetings, is also included in working time.
- Exclusions: Travel time between home and the first/last work location of the day is usually not considered working time for NMW purposes.
The key things to note from this case related to travel time are:
- You do not have to include commuting time in NMW calculations where the worker travels between home and the first/last work location.
- You do have to include, for NMW calculations, travel time between the different work locations including where the worker attends a hub/base first, and then travels from there to their subsequent work location.
- The NMW regulations are different from the Working Time Regulations (WTR). Under the WTR the time spent travelling from home to the first work location, and from the last work location back home, is considered working time for peripatetic workers.
Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited