Is travel time to and from work ‘time work’?

The Court of Appeal ruled in Revenue and Customs Commissioners v Taylors Services Ltd (Dissolved) and others that travel between home and a first work location does not qualify as ‘time work’ under the National Minimum Wage Regulations 2015 (“NMW Regulations”).

Background

The Respondent, who supplied workers to poultry farms nationwide, received a notice of underpayment from HMRC due to failing to compensate employees on zero-hour contracts for the time spent travelling on employer-provided minibuses from their homes to the first work site. These journeys, facilitated by the employer, could take up to four hours each way.

Decision

The ET upheld the HMRC’s notices. However, the EAT allowed the appeal, ruling that workers are not entitled to pay for travel time to and from their first assignment, as it does not count as ‘time work’ under the NMW Regulations, even though such travel was necessary for their job.

The Court of Appeal upheld the decision of the EAT and dismissed HMRC’s appeal. The Respondent was not required to pay the workers for the time spent travelling on the minibus.

The NMW Regulations state:

• Time travelling to work, where the worker would otherwise be working, is treated as ‘time work’.
• This provision does not extend to travel between the employee’s residence and their designated workplace or the location where assigned duties are performed.
• Time spent travelling to perform assignments at locations other than the employer’s premises, or in cases where it is unclear whether the worker would otherwise be working due to variable hours, is considered time during which the individual ‘would otherwise be working’.

HMRC and the EAT observed that this case might expose an anomaly open to employer manipulation. The Court of Appeal stated that any such anomaly should be addressed by a Low Pay Commission report or by amending the Regulations through the Secretary of State.

Comment

This case establishes that although time spent commuting between home and work is not compensable under the NMW Regulations, there are specific situations where travel time must be paid to workers. Employers are advised to review and update their pay practices to ensure they compliant with the NMW Regulations.

For further advice or assistance with any of the above, please get in touch with a member of the Employment team.