No entitlement to NMW while “just travelling” if journey starts or ends at home

The Employment Appeal Tribunal has ruled that a group of workers in the poultry industry were not entitled to the National Minimum Wage for the time they spent travelling in their employer’s minibus, if they were picked up from their homes.

The workers were engaged on zero-hours contracts. They argued that they should be paid the NMW for the time they spent travelling to distant farms and back – often several hours' drive each way. This argument was accepted by HMRC. It served an enforcement notice on their employers and the employment tribunal dismissed their appeal.

However the EAT has said that neither HMRC nor the employment tribunal had interpreted the National Minimum Wage Regulations correctly. If they had read the relevant provisions as a whole, they would have appreciated that just travelling (ie without doing any work while travelling) from home to a place of work and back could not be regarded as work for which the NMW was payable.

As the EAT pointed out, this case exposes a potential loophole in the NMW Regulations. That’s because employers could avoid paying their workers for the time spent travelling to their first assignment by picking them up from their homes, rather than collecting them from the employer’s premises. The same would apply travelling back home from the final assignment of the day.

The facts of this case were relatively unusual, but there are five broader lessons which can be drawn from it:

• Although this case was about hourly paid workers, essentially the same rules apply to salaried workers when it comes to excluding entitlement to the NMW for time spent travelling from home to a place of work, or to the location of their first assignment, and back home from the final assignment of the day.
• Conversely, it is a reminder that a worker must be paid at least the NMW for time spent travelling between different assignments during the working day – a rule that is often overlooked.
• This ruling is about “just travelling”. The EAT has made it clear that the position could be different if a worker is required to do work while travelling (eg responding to e-mails and phone calls) or if being on the move was their job (eg bus drivers).
• The NMW regime is about setting a minimum level of pay, and it is quite possible that the contractual arrangements in this situation would be more generous. Indeed, in this case the employers had previously made some payment for commuting time.
• Finally, this ruling also highlights how the NMW regime differs from the Working Time Regulations when it comes to the treatment of travelling time. For NMW purposes the key principle is that workers are not normally entitled to payment for commuting time. On the other hand, the WTR is health and safety driven and is not about pay. For that reason it applies a different definition to determine when a worker is treated as “working” for the purposes of minimum rest breaks and the weekly limit on working hours. It is quite possible that the workers in this case would be entitled to the protection of the WTR while travelling, given that these arrangements were so closely controlled by the employer and the location of each assignment was so remote.