The Employment Appeal Tribunal (EAT) has held in Taylors Service Ltd (dissolved) and another v The Commissioners for HM Revenue and Customs that workers were not owed the national minimum wage (NMW) when travelling from home to their place of work by minibus.
The workers were engaged on zero hours contracts and supplied to the poultry industry by Taylors Service Ltd (TSL) and Taylors Poultry Services (TPS) to carry out work including injecting, grading, loading and unloading poultry. TLS and TPS provided a minibus to collect them from their homes and transport them to their first assignment of the day. These journeys could be very long; sometimes the claimants could be travelling for up to eight hours on top of a normal working day. Travel time was paid at the rate of £2.50 an hour. In 2020 HMRC decided that the time that the workers spent travelling to and from farms around the country should be remunerated at the NMW and issued Notices of Underpayment plus penalties.
TSL and TPS challenged the Notices of Underpayment, but an employment tribunal dismissed the claims holding that the time spent travelling was "time work" and could not be regarded as a "normal commute". On appeal the EAT overturned the tribunal's decision. It held "just" travelling is not to be treated as work, unless there is "work" to be done while travelling (for instance where someone is employed as a driver, or where someone is working on documents on a train or having business meetings on the move).
The EAT did note that this led to an injustice, given that if the employer requires the workers to be collected from their homes they are not entitled to the NMW, but if they are required to come to the employer's premises first, then any subsequent travel would be deemed to be "time work" and therefore subject to the NMW. In this instance the "time work" 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.
Take note: Interestingly, the EAT in this case highlighted the importance of the Supreme Court's decision in Royal Mencap Society v Tomlinson-Blake. Although this case dealt with sleep-in shifts and the NMW the EAT relied on the Court's finding that the fact that an employee is subject to the employer's instructions does not mean that they are entitled to a wage (in the case of sleep-ins the hours not working do not attract the NMW). This meant that even though the workers were travelling from their home to their workplace for the benefit of the employer, this was not time for which they had to receive NMW payment.
