Time spent travelling to a place of work by minibus provided by the employer did not constitute ‘work’ for the purposes of national minimum wage.

HMRC had brought action against the respondent employer in relation to the National Minimum Wage Act 1998. The issue was whether workers on zero-hour contracts were completing ‘time work’ when they were being transported by the employer in a minibus to the place of work.

At first instance, the Tribunal found that it was ‘time work’ and that the employer had to pay the national minimum wage for the time spent travelling to work.   In the reasoning, the Judge did outline that if it was not ‘time work’ under Regulation 30 then it would not be time work under Regulation 34 as the journeys were not undertaken at a time when the worker would otherwise be working. The EAT allowed the employer’s appeal based upon the reasoning in Royal Mencap Society v Tomlinson-Blake from the Supreme Court.  There was a requirement to look at the Regulations widely to determine what was meant by work.  The Supreme Court in that case found that ‘sleep’ was not intended to be work by the drafters of the legislation.  In this case, the drafters of the legislation did not consider travelling to be part of the ‘time work’. The fact that the travel was provided by the employer did not displace that.

HMRC appealed the decision to the Court of Appeal.  The Court of Appeal looked at the interpretation of Regulation 30 and more importantly Regulation 34 which specifically dealt with travelling. It was found that the travel from the home to a place of work would not be included but rather travelling which constitutes time working would apply to those peripatetic workers or those who are travelling from one place of work to the next.  In this case, it did not fall into that latter definition but rather the former in that they were being picked up from where they were staying to then be transported to their place of work.  Accordingly, the appeal was dismissed.

The Court of Appeal has provided some useful guidance when it comes to interpreting the Regulations about what constitutes work for the purposes of national minimum wage.  Where an individual is travelling from one place of work to another then that time would have to be considered but it would not be such that it is from their home to the place of work even if the transport is arranged by the employer.

You can read the case in full here.