Should time workers have been paid the NMW for travel time from their homes to a job site? | The Indicator Podcast

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The employer in this case provided transport for its time workers from their homes to various job sites but did not pay the workers the National Minimum Wage for their time spent travelling. HMRC asserted that this was a breach of the National Minimum Wage regulations and fined the employer who then appealed against HMRC’s findings to the Court of Appeal, which was tasked with determining whether the National Minimum Wage was payable or not in these circumstances. Listen along to find out what happened!

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Speaker #0
Today, in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of the Commissioners for HM Revenue and Customs and Taylors Services Limited and others, in which the Court of Appeal was asked to determine whether employee travelling time to jobs was working time for national minimum wage purposes. The employers in this case engaged workers as flock technicians on zero-hours contracts and provided them to poultry farms around the country to carry out various tasks such as catching poultry, giving them injections, grading them and loading and unloading them. The employers usually provided a minibus which collected the workers from their homes and took them directly to their first assignment. The workers were sometimes required to go first to the employer's premises. Sometimes the journeys could be very long, up to four hours each way. so that the workers could be travelling for up to eight hours a day on top of a normal working day, or they could be collected from home in the middle of the night in order to reach the site of that day's assignment in time for a morning's work. Travelling time was paid at £2.50 per hour. HMRC determined that the time which those workers spent travelling to and from the farms was time for which those workers should be paid the national minimum wage, and issued the notices assessing that the employers were liable for arrears of national minimum wage pay, at over £60,000, and penalties at almost the same amount in relation to that travel time. The employers appealed against the notices to an employment tribunal. The tribunal considered whether the workers' travel from their homes to the farms to which they were assigned for that day counted as time work, within the meaning of Regulation 30 of the National Minimum Wage Regulations. The tribunal held that this travel time did amount to time work. and that the workers should be paid the national minimum wage for that travelling time and upheld the notices. However, the Employment Appeal Tribunal overturned the Tribunal's decision and held that the workers were not entitled to the national minimum wage in respect of the travel time, since the regulations stipulate that, unless a worker was doing work while travelling, the time spent travelling does not constitute work within the meaning of the regulations. The fact that the travel time was for the purpose of working for the employers or that the employers had significant power to oblige the workers to do it made no difference. During this travel time, the workers would have been free to talk, nap, read, and if they had the necessary electronic devices to listen to music, watch a film, or spend their time applying for more agreeable alternative employment. HMRC appealed to the Court of Appeal. Dismissing the appeal, the Court noted that the plain meaning of the regulation was sufficiently clear and a purpose of construction of the regulations was not required. Time work is a technical term within the regulations, and applying the approach adopted by the Supreme Court in the case of Mencap, it was essential to read the regulations as a whole in order to understand their intended meaning. The Tribunal had therefore failed to consider the part of the regulations which concerned when travelling was to be treated as hours of time work. This provides that travelling is treated as time work, if the travelling is for the purposes of time work, where the worker would otherwise be working. unless the travelling is between the worker's home and the place of work. However, this made no difference to the outcome in the present case, as the workers would not otherwise be working during the periods of travel between the different assignment locations. In any event, the time spent travelling was exempted from time work, since the workers were travelling from their homes to their place of work, and therefore that time did not constitute time work. The court acknowledged HMRC's argument that the facts of this case reveal a potential injustice or anomaly. in that whether or not a worker's travel time counted as hours of time work can be influenced or manipulated by an employer's decision to provide transport and to pick up the workers from their homes, with the result that workers in the present case were not entitled to the national minimum wage for up to eight hours a day when they were travelling. However, the court noted that the regulations contain mechanisms to address any such loophole or anomaly and that this should be done by the Low Pay Commission or Secretary of State. rather than through the courts. Look out for further episodes in this series to stay up to date on all things HR and employment law related.

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Visit www.lefebvre-uk.co.uk to explore our product range, or connect with us on social media:

Hosted on Ausha. See ausha.co/privacy-policy for more information.

Transcription

Speaker #0
Today, in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of the Commissioners for HM Revenue and Customs and Taylors Services Limited and others, in which the Court of Appeal was asked to determine whether employee travelling time to jobs was working time for national minimum wage purposes. The employers in this case engaged workers as flock technicians on zero-hours contracts and provided them to poultry farms around the country to carry out various tasks such as catching poultry, giving them injections, grading them and loading and unloading them. The employers usually provided a minibus which collected the workers from their homes and took them directly to their first assignment. The workers were sometimes required to go first to the employer's premises. Sometimes the journeys could be very long, up to four hours each way. so that the workers could be travelling for up to eight hours a day on top of a normal working day, or they could be collected from home in the middle of the night in order to reach the site of that day's assignment in time for a morning's work. Travelling time was paid at £2.50 per hour. HMRC determined that the time which those workers spent travelling to and from the farms was time for which those workers should be paid the national minimum wage, and issued the notices assessing that the employers were liable for arrears of national minimum wage pay, at over £60,000, and penalties at almost the same amount in relation to that travel time. The employers appealed against the notices to an employment tribunal. The tribunal considered whether the workers' travel from their homes to the farms to which they were assigned for that day counted as time work, within the meaning of Regulation 30 of the National Minimum Wage Regulations. The tribunal held that this travel time did amount to time work. and that the workers should be paid the national minimum wage for that travelling time and upheld the notices. However, the Employment Appeal Tribunal overturned the Tribunal's decision and held that the workers were not entitled to the national minimum wage in respect of the travel time, since the regulations stipulate that, unless a worker was doing work while travelling, the time spent travelling does not constitute work within the meaning of the regulations. The fact that the travel time was for the purpose of working for the employers or that the employers had significant power to oblige the workers to do it made no difference. During this travel time, the workers would have been free to talk, nap, read, and if they had the necessary electronic devices to listen to music, watch a film, or spend their time applying for more agreeable alternative employment. HMRC appealed to the Court of Appeal. Dismissing the appeal, the Court noted that the plain meaning of the regulation was sufficiently clear and a purpose of construction of the regulations was not required. Time work is a technical term within the regulations, and applying the approach adopted by the Supreme Court in the case of Mencap, it was essential to read the regulations as a whole in order to understand their intended meaning. The Tribunal had therefore failed to consider the part of the regulations which concerned when travelling was to be treated as hours of time work. This provides that travelling is treated as time work, if the travelling is for the purposes of time work, where the worker would otherwise be working. unless the travelling is between the worker's home and the place of work. However, this made no difference to the outcome in the present case, as the workers would not otherwise be working during the periods of travel between the different assignment locations. In any event, the time spent travelling was exempted from time work, since the workers were travelling from their homes to their place of work, and therefore that time did not constitute time work. The court acknowledged HMRC's argument that the facts of this case reveal a potential injustice or anomaly. in that whether or not a worker's travel time counted as hours of time work can be influenced or manipulated by an employer's decision to provide transport and to pick up the workers from their homes, with the result that workers in the present case were not entitled to the national minimum wage for up to eight hours a day when they were travelling. However, the court noted that the regulations contain mechanisms to address any such loophole or anomaly and that this should be done by the Low Pay Commission or Secretary of State. rather than through the courts. Look out for further episodes in this series to stay up to date on all things HR and employment law related.

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