Following changes to pay rates in April 2024, our Agriculture Lawyers examine the National Minimum Wage Regulations 2015 (NMWR) and travel time in an agricultural context.
This follows a recent Employment Appeal Tribunal decision that determined that Taylors Poultry Services, a labour provider for farms, is not required to pay workers the national minimum wage for their travel time to work.
Background on Taylors Poultry Services
Taylors Poultry Services (Taylors) engaged workers on a zero-hour basis to complete work on poultry farms.
Taylors would arrange for minibuses to collect staff from their home addresses and transport them to various locations around the country to complete work.
These journeys were often significant, sometimes lasting up to eight hours per day, and even involved collection from workers' home addresses at night.
In 2020, HMRC determined that travelling to and from assignments was working time and that, as a result, all workers were entitled to receive the national minimum wage for this time.
Taylors was issued a Notice of Underpayment totalling £62,000 plus penalties.
Legal framework: Understanding NMWR
European case law has defined travelling to assignments as the 'working time' under the Working Time Directive.
However, this does not affect the payment of the National Minimum Wage, which is dealt with separately under the NMWR.
This that specifies travel time, in some circumstances, can be considered as work, unless the travelling is between:
- The worker's home and their normal place of work, or;
- The worker's home and an assignment
However, when the worker travels to carry out assignments, hours may be considered work for the NMWR if the travel is to a place not occupied by the employer and the workers would "otherwise be working".
Initial Employment Tribunal ruling
In 2021, Taylors challenged the Notice of Underpayment in the Employment Tribunal, arguing that its workers were not required to complete any work whilst travelling and could not even sleep during this time.
It argued that travellers should not be entitled to the National Minimum Wage during any time spent travelling and that HMRC's Notice of Underpayment should be revoked.
The Employment Tribunal rejected Taylors' argument, outlining that the workers' journeys did not amount to a "normal commute" and instead were part and parcel of this type of work.
The Tribunal concluded that because Taylors' workers were required to travel by minibus, they were at Taylors' disposal during this time and were entitled to be paid.
Employment Tribunal appeal decision
In May 2024, Taylors appealed to the Employment Appeal Tribunal.
In its argument, Taylors made an analogous comparison to care sector workers, who are not entitled to payment of the national minimum wage during 'sleep-in' shifts as during this time, the workers could not be described as 'working'.
Taylors claimed this finding should apply to its workers during travelling time.
The Employment Appeal Tribunal considered it necessary to review the NMWR closely to determine what 'work' meant. It was determined that ordinary travelling did not constitute 'work' for the NMWR.
The Employment Appeal Tribunal, recognising that this situation was rare, found that:
"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, listen to music, watch a film, or spend their time applying for more agreeable employment."
However, The Appeal Tribunal noted that had the workers been required to attend Taylors' business premises before travelling to an assignment, any subsequent travel time would have been 'work' for the NMWR, and the National Minimum Wage would have been payable.
Key Considerations for Employers
The original Employment Tribunal and Appeal in Taylors serve as useful reminders of the complexity of national minimum wage issues, particularly those involving atypical working requirements.
The decision illustrates the technical application of the law in this area and demonstrates that employers must tread carefully when dealing with the issue to avoid being on the wrong side of an Employment Tribunal claim or an HMRC penalty.
Contact Our Agricultural Lawyers
For more help and advice regarding the National Minimum Wage in the agricultural sector, contact our Agricultural Lawyers on:
01619414000
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