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July 11, 2024

Legal Issues – EAT says employer does not have to pay employees for travel time

Should travel time be remunerated by employers? This was the question in Taylors Poultry Services v HMRC.

The workers concerned were on zero-hour contracts. The employer, Taylors, provided a minibus to take them from their homes to the farms in which they would work. HMRC decided that the travel time should be paid at national minimum wage rates and served the employer with notices of underpayment.

Taylors appealed to the Employment Tribunal on the basis that the workers were not required to work when they were in the minibus and that this could not be classed as working time. The Tribunal disagreed with this assessment. It concluded that travelling around the country to different locations was “part and parcel of the job” and while the workers weren’t necessarily carrying out work tasks they were not at home and they were “under the control of their employer who was in control of where they were going, how far they would travel and what route they would follow”. These journeys could be very long and workers could spend up to eight hours a day commuting.

Another factor in the decision was that there was a clause in the contract which allowed for a discretionary payment for travel time although it was stated that this was not “normally payable”. In practice it was paid at various amounts.  

Taylors appealed this decision. In their appeal they referred to the Supreme Court case of Royal Mencap Society v Tomlinson-Blake which held that care workers doing sleep-in shifts were not entitled to national minimum wage when not carrying out work tasks. The EAT allowed the appeal. The Mencap judgement had clarified that “it is clearly not the position that, simply because at a particular time an employee is subject to the employer’s instructions, he is necessarily entitled to a wage.” And that this would apply to travel time in this case. The workers were free to talk, sleep, listen to music or even “spend their time applying for more agreeable employment.”

The EAT also acknowledged the injustice in the fact that while in this case travel time was not working time, if the employer required workers to come to its premises first, then subsequent travel would need to be paid at national minimum wage.

For employers this shows how the Mencap case can be applied in a range of situations and that travel and commuting time does not necessarily attract remuneration.

If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.

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