Case update

Working (travel) time

Overview

On 26 June 2024, the Employment Appeal Tribunal overturned the decision of the Employment Tribunal and held that workers transported by an employer-supplied minibus from their homes to their assignments were not engaged in ‘time work’ for the purposes of the National Minimum Wage Regulations 2015 (the Regulations).

This decision will have important implications for those employers who seek to pay their workers a sum close to or equal to the National Minimum Wage, particularly when such workers are subject to lengthy travel requirements.

Case summary

  • A number of workers were employed on ‘zero hours’ contracts in the poultry industry. The workers were collected from their homes on an employer supplied minibus and transported to their assignments, before being picked up and returned home on the same minibus. On occasion, the journey time may have been up to four hours each way.

  • In 2020, following an unannounced visit at the employer’s site from HMRC officers and subsequent investigation, HMRC decided that the time the workers spent travelling to and from the farms was time that should be remunerated at National Minimum Wage (NMW). HMRC issued Notices of Underpayment accordingly.

  • The Employment Tribunal agreed, noting that whilst the workers were not “working” in the ordinary sense of the word, the employer was exercising sufficient control over the workers, requiring them to be collected and transported to assignments, dictating the mode of the transport, collective times and route.

  • On appeal, the EAT overturned the decision. It held that the Regulations needed to be considered in the round, and, in particular, the definition of “work”. The EAT held that “just” travelling should not be treated as work. Unless there is “work” to be done whilst travelling – for example, working on documents or engaging in a team / business meeting, the time spent travelling cannot be “work” for the purposes of the Regulations.
“…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.” (para. 45 of the judgment)

Key takeaways

As above, employers that pay their workers close or equal to the NMW will need to exercise caution in the distinction between “just” travelling and requesting “work” to be undertaken whilst travelling.

This follows the approach taken by the Supreme Court in Royal Mencap Society v Tomlinson-Blake, where it was held that a care worker was not entitled to be paid NMW for all the time that they were on a ‘sleep-in’ shift. In this case, the Supreme Court drew a similar distinction between ‘actual work’ and ‘availability for work’.

In the sports industry, employers should be mindful of any “work” type events that take place during travel, including, by way of example, tactics meetings or video analysis sessions that may take place whilst on a team bus or at a team hotel.