Time spent travelling to work on employer minibus not counted for national minimum wage purposes

Background

In the case of Revenue and Customs Commissioners v Taylors Services Ltd, the Court of Appeal has upheld a decision that poultry workers were not entitled to be paid the national minimum wage (NMW) for time spent travelling on their employer's minibus from home to various farms across the country. Workers were picked up from their homes and driven to assignments, sometimes adding up to eight hours to their day. They were paid for this travel at the rate of £2.50 per hour. 
In 2020, HMRC determined that the travel time should be treated as "time work" under regulation 30 on the National Minimum Wage Regulations 2015 and issued notices of underpayment. Taylors Services Ltd appealed to the employment tribunal who initially agreed with HMRC, but the Employment Appeal Tribunal (EAT) overturned that decision. HMRC appealed.

Court of Appeal decision

The Court of Appeal followed the approach in Royal Mencap Society v Tomlinson-Blake, confirming that the NMW regulations must be read as a whole. The tribunal had been wrong to focus only on regulation 30 without considering regulation 34, which provides that travel time is only "time work" if workers would otherwise be working during that time. The Court agreed that they would not and that, in any event, the time would still have been exempted under regulation 34 because the workers were travelling from home to their place of work.

The Court rejected HMRC's argument for a purposive reading that would override the plain wording of the legislation. While it recognised HMRC's concern that employers could potentially avoid paying the NMW for travel by arranging home pick-ups, the judges considered that addressing any such anomaly was a matter for the Low Pay Commission or Secretary of State, not the courts.

Learning points for employers 

This is a helpful case on when travel time should be considered as time work. Employers providing staff transport from home to work sites should be aware that at present this time is unlikely to amount to "time work" for the purposes of the NMW regulations. There are however, circumstances where travel time will count as working time for NMW purposes. Where travel takes place during hours when the worker would "otherwise be working" - such as between assignments (as opposed to between the worker's home and place of work) - it may still be "time work" and should be treated accordingly.

For more information or advice, please contact Sofia Efstathiou in our Employment team.