In a recent case called Taylor’s Services Limitedzero-hours workers travelled to farms around the country providing poultry services. They were picked up by their employer’s minibus from their home addresses. HMRC issued a notice of underpayments of national minimum wage (NMW) to their employer. HMRC concluded that time spent by the workers travelling by minibus to and from their home addresses to the various farms ought to be paid at national minimum wage. The employment tribunal agreed with this position, taking a sequential approach to Regulation 30 and 34 of the National Minimum Wage Regulations 2015.

The Employment Appeal Tribunal (EAT) disagreed. It held that time spent ‘just’ travelling is not “time work” for the purposes of Regulation 30 unless it is deemed to be such by Regulation 34. Regulation 34 states that travel from home to place of work is not “time work”. Unless there is ‘work’ being done while ‘travelling’, the time spent on that activity cannot be ‘work’ for the purposes of Regulation 30. The mere fact that the travel is travel that the worker is obliged by the employer to undertake – using their minibus – does not turn the travel into work.

The EAT did comment that this led to an injustice: “If the employer requires the employees to be collected from, and returned to home, then they are not (on my analysis) entitled to NMW, but if the employer requires them to come to its premises first, then the subsequent travel is deemed by regulation 34 to be “time work” and the NMW is payable”.

The EAT set aside the employment tribunal’s decision and allowed the employer’s appeal against the notices of underpayments of NMW that had been issued by HMRC.