Travel Time and the National Minimum Wage.

The Employment Appeal Tribunal (EAT) has held that time spent by poultry workers travelling from their homes to and from farms around the country was not "time work" for the purposes of the National Minimum Wage.

The workers were collected from their homes on a minibus provided by the employer and transported to their assignments. Sometimes these journeys could add as much up to eight hours to the length of a normal working day. The workers were paid for this travel, but only at the rate of £2.50 per hour. In 2020, HMRC decided that the workers' travel time should be paid at not less than the National Minimum Wage and issued Notices of Underpayment.

An employment tribunal dismissed the employer's challenge to these Notices, finding that although the workers were not working in the ordinary sense when travelling on the minibus, the travel time to and from the assignments was "time work" within the meaning of the minimum wage legislation. This was based in part on the level of control which the employer exerted over the workers: they required the workers to be collected and transported to assignments, and dictated the mode of transport, collection times and route.

The EAT overturned that finding, and decided that the employees’ "time work" (subject to the minimum wage) began on arrival at their destination and ceased when their poultry work was done and they awaited the minibus to take them home. This was notwithstanding that if the employer was to require the employees to go to one if its premises first and transport them to and from their assignment from there, the travel to and from assignments would then be deemed to be "time work".

The minimum wage legislation provides that hours when a worker is travelling for the purposes of time work, where the worker would otherwise be working, are treated as time work, unless the travelling is between the worker's home and (a) their normal place of work or (b) and an assignment. Hours treated as hours when the worker would "otherwise be working" include hours when the worker is travelling for the purpose of carrying out assignments to be carried out at different places between which the worker is obliged to travel.

The EAT acknowledged that there will be cases where someone may be doing "time work" while travelling. Such cases would include those employed as drivers or working on public transport. Equally, someone who works while travelling (for example, working on documents on a train or having business meetings by phone or video call whilst on the move), will also be carrying out "time work". But the mere fact that the travel 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 – even if the travel is done on a form of transport mandated by the employer or at a time determined by the employer.

The EAT made the point that to the extent that this created an injustice – owing to the length of the travel time in this case, and the seemingly arbitrary distinction that if the employer had required the employees to come to its premises first, then any subsequent travel would be deemed to be "time work" – that was a matter for Parliament to deal with.