Employers should carefully consider whether travel time attracts the National Minimum Wage. Most often, time spent travelling between assignments, rather than commuting time between home and work, is required to be paid.
In this employment ruling, two employers engaged workers on zero hours contracts. They were supplied to the poultry industry for work on various poultry farms.
The employers provided a minibus to collect the workers from their homes (and very occasionally from the farms where they worked) to transport them directly to their first assignment of the day. Given the long journey time, the workers sometimes travelled up to eight hours (four hours each way) on top of their normal working day. HMRC, which is responsible for enforcing payment of the National Minimum Wage (NMW), determined that the time that the workers spent travelling to and from farms should be paid at the NMW rate and issued Notices of Underpayment.
The employers disputed the notices and appealed to the employment tribunal.
The employment tribunal dismissed the appeal against the Notices of Underpayment, ruling that the time spent travelling was "time work" as defined in regulation 30 of the NMW Regulations 2015 (NMW Regulations). This was based in part on the level of control the respondent exerted over the workers which meant that the travelling time was not an “ordinary commute; they required the workers to be collected and transported to assignments and they dictated the mode of transport, collection times and route. The employers appealed the tribunal’s ruled.
On appeal the Employment Appeal Tribunal upheld the appeal against the Notices of Underpayment.
The Employment Appeal Tribunal ruled that the approach to the interpretation of the NMW Regulations taken by the Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8, [2021] ICR 758 in the case of care workers who are required to sleep-in as part of their job, also applied in this case. In that case, the Supreme Court found that sleep-in care workers were not entitled to the NMW unless they were awake for the purposes of working.
As the Supreme Court had held in this case, it was necessary to look at the whole of the NMW Regulations to understand what "work" meant. In that case, the Supreme Court concluded that the legislation did not consider that "work" included "sleep". Similarly, it could not be said that "travelling" to and from the place of work was "work". It was clear that travel from home to work should not count as “time work”, regardless of whether the travel was to a “permanent workplace” or not. The mere fact that the travel from home to work is for the purposes 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.
Had they instead been transported between work assignments, or arranged their own travel themselves between different workplaces (rather than from between home and work), the travel time would have been treated differently and would have attracted National Minimum Wage.