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National Minimum Wage not due to workers travelling to sites by minibus

There have been a lot of cases in recent years concerning what counts as working time for National Minimum Wage (NMW) purposes for workers who travel to different sites throughout the day, so-called peripatetic workers.

In the recent case of Taylor’s Services Ltd v HMRC the Employment Appeal Tribunal has held that NMW was not due when workers travelled from home to sites by minibus.

Background

The employer is in the poultry sector and had zero-hour workers travelling to farms around the country.  They were picked up from home in the mornings by minibus, provided by the company, and taken to each site. In 2020 HMRC issued underpayment notices, saying that the travelling time spent by the workers from home to the first site and vice versa was working time for the purposes of the NMW. As was their right, the employer appealed to the Employment Tribunal, but they agreed with HMRC. The employer then appealed that decision to the Employment Appeal Tribunal (EAT).

What did the EAT say?

They disagreed with both HMRC and the employment tribunal. In a decision that will be of comfort to some employers and going against the run of cases over the last few years, the EAT said the time spent travelling was not working time, unless work is being done while travelling. The fact that the workers were obliged to undertake the travel by the employer, whilst using the employer’s minibus, did not turn the travel into work. 

Conclusion

This case potentially sets the cat amongst the pigeons. It has, for some time, been understood by employment lawyers that travel to an employer’s site before going on to others is not working time, but if a worker goes directly from home to clients’ sites, it is. This case puts that thinking into doubt, albeit it could be argued there is a distinguishing feature of the employer providing the minibus service. This case may well be cited in future, and it will be interesting to see what happens. In the meantime, we would advise employers to remain cautious in determining working time for pay purposes when asking workers to travel from home directly to clients’ sites.

If you would like to discuss this case further, or have any questions, please don’t hesitate to contact me.