An employment appeal tribunal (EAT) has ruled that Taylors Poultry Services, which provides labour to farms, did not have to pay workers the national minimum wage while they were travelling to work.
The organisation, which employs workers on zero-hours contracts to work on poultry farms, provides minibuses to take staff to and from their home addresses to farms around the country.
It said that sometimes these journeys could be long, up to about four hours each way, which means that workers could be travelling for around eight hours on top of their normal working day. They were occasionally collected from their homes in the middle of the night in order to reach the assignment sites in time for work.
Under the terms of their employment contracts, the workers could receive a discretionary payment for their travel time. The contracts said this was not ‘normally payable’ but, in practice, travel time was paid at various amounts.
In 2020, HMRC issued a notice of underpayment to the firm, which decided that the time workers spent travelling to and from farms was ‘time work’ and the workers should be paid at least the national minimum wage (NMW) while on the minibus.
The employer took its case to an employment tribunal, arguing that the workers were just travelling to and from their assignments and not required to carry any work while on the minibus, so it was not required to pay the NMW. It said the workers could sleep on the minibus if they wanted.
However, in 2021 the tribunal upheld the notice of underpayment, finding that travelling was ‘part and parcel of this type of job’ and ‘not a normal commute’.
The tribunal considered the meaning of ‘time work’ under the National Minimum Wage Regulations 2015, and when travelling for work purposes can fall within the definition of time work. It also considered the terms of the workers’ contracts.
Taylors Poultry Services appealed against the decision. Its solicitor argued before the EAT that the tribunal failed to approach the case in accordance with the Supreme Court’s Royal Mencap Society v Tomlinson-Blake judgment, which found that care workers who sleep at service users’ homes are not entitled to the NMW while not carrying out work activities.
Although it said it was rare for workers to be required by their employer to use its transport to take a lengthy journey to work, the EAT found that a worker, in this case, would not be entitled to the NMW for the time spent travelling.
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However, if the organisation required workers to come to its premises first, the subsequent travel would need to be paid at least the NMW.
Judge Holly Stout said: “The workers while on the minibus were not working in any ordinary sense. They would have been free to talk, snooze, read and, if they had the necessary electronic devices, to listen to music, watch a film or spend their time applying for more agreeable employment. They were, in short, not working, but travelling for the purposes of the time work, which began on arrival at their destination and ceased when their poultry work was done and they awaited the minibus to take them home.”