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Poultry workers travel times not ‘working time’

In Taylors Service Ltd (dissolved) and another v The Commissioners for HM Revenue and Customs [2024] EAT 102, the Employment Appeals Tribunal (EAT) held that time spent ‘just’ travelling was not ‘time work’ for the purposes of regulation 30 of the National Minimum Wage Regulations 2015, and nor could it be deemed to be ‘time work’ under the exception for travel time in regulation 34.

Time work is defined as work outside of salaried work for which a worker is entitled to be paid. Travel time between jobs or business locations can be treated as time work. However, the following is not classed as time work:

• Travel between the worker’s home and their usual place of work.
• Travel between the worker’s home and an assignment.

In this case, Taylors Service Ltd (TSL) and Taylors Poultry Services (TPS) engaged workers on zero hours contracts and supplied them to the poultry industry. The companies provided a minibus that would collect the workers from their homes (or occasionally from their business premises) and transport them directly to their first assignment. On top of a normal working day, these journeys could be up to eight hours long. The workers were paid £2.50 per hour.

In 2020, HMRC decided that the time workers spent travelling to and from farms around the country should be reimbursed at the NMW and issued Notices of Underpayment totalling around £62,000 of wage arrears, plus penalties. TSL and TPS had their claim against the wage arrears dismissed in the Employment Tribunal (ET). However, the EAT overturned the ET’s ruling, citing the Supreme Court’s decision in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home) [2021] UKSC 8. In this case, the Supreme Court held that care workers who were expected to sleep at, or near, their workplace, and be available to be called on during the night, were not entitled to the NMW for their entire sleep-in shifts. When workers were sleeping, they were not working; rather they were ‘available to work’. The EAT, having examined the Supreme Court’s reasoning, stated that time spent travelling to work could not be classed as working unless there was work to be done whilst travelling.

The EAT recognised that this decision may be unfair as the workers had no choice but to travel long distances if they accepted specific assignments; however, it was for Parliament, not the Courts, to amend any defects in the legislation.