June 26
The claimants, employers of workers on zero hours contracts, provided transport by minibus for workers to and from their home addresses to poultry farms around the country. The workers were mandated to use the transport provided by their employer and the journeys were often lengthy. The Revenue and Customs Commissioners decided that the time that workers spent travelling to and from farms was time that should be remunerated at the national minimum wage pursuant to section 1(1) of the National Minimum Wage Act 1998, and issued notices of underpayment accordingly. The claimants appealed to the employment tribunal. The tribunal dismissed their appeals and upheld the notices of underpayment. The claimants appealed on the ground that it was arguable that the judge had erred in law in concluding that the workers’ travelling time to the first assignment of the day and back again was “time work”, as defined in regulation 30 of the National Minimum Wage Regulations 2015, for which the workers were entitled to be paid the minimum wage. They argued that it was instead caught by the exception for travel time in regulation 34(1) of the 2015 Regulations, with “travelling” as defined in regulation 20.
On the appeal—
Held, appeal allowed. When interpreting the meaning of “work” in the 2015 Regulations, it was necessary to look at the whole of the Regulations in order to understand what the drafters of the legislation considered “work” meant. Looking at regulation 34 led to the conclusion that the drafter of the legislation did not consider that travelling was “work”. It was further apparent that the drafter also considered that travelling would not be working even where it was for the purpose of carrying out assignments at different places between which the worker was obliged to travel by the employer. That was not to say that there would not be cases where someone was working while travelling, but there had to be work done while travelling for the time spent on that activity to be “work”. The words “work” and “travel” were to be given their ordinary meanings, albeit informed by relevant provisions in the regulations, in particular regulations 34 and 20. As such, the mere fact that the travel was for the purposes of carrying out work for the employer, or was travel that the worker was obliged by the employer to undertake, did not turn the travel into work. Nor could it matter that the travel was done on a form of transport mandated by the employer or at a time determined by the employer. Further, given the terms of regulation 20, the mode of travel could not matter. There was, moreover, on a proper construction of regulation 34, no indication that the exception there required the travel from home to work to be ordinary commuting: the drafter clearly intended that no travel from home to work should count as “time work”. In the present case, the workers were not engaged in work in the ordinary sense when travelling on the minibus and, applying the above construction of regulations 30 and 34, were not engaged in “time work” when so travelling. They were travelling for the purposes of the time work, which began on arrival at their destination and ceased when the poultry work was done and they awaited the minibus to take them home (paras 41–46, 49–50, 51).
James Boyd (instructed by JMW Solicitors LLP) for the second claimant.
George Rowell (instructed by HM Revenue and Customs) for the respondent.
The first claimant did not appear and was not represented.