Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The employers, the claimants in this case, appealed a decision made by the respondent that the time workers were spending travelling to and from their place of work should be remunerated at the national minimum wage. The background was that the workers were on zero-hour contracts and the employer provided a minibus to transport them to and from the farms. The issue was whether this time should be regarded as ‘time work’ under the National Minimum Wage Act 1998 and as a result that the national minimum wage would have to be paid.
Outcome:
At first instance, the Tribunal found that it was ‘time work’ and 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. Similarly, it was held that the drafters did not consider travelling to be work. The mere fact that the travel was for the purposes of carrying out the work or that the worker was obliged by the employer to undertake did not turn it into work. Nor did the form of transport, that being the minibus, make the travel turn into work.
Practical Guidance for Employers:
An interesting case in terms of what is meant by work for the purposes of when the employers are obliged to pay the national minimum wage. The Tribunal makes it clear here that the Regulations must be read together rather than being read separately – therefore when it relates to travel it will not constitute ‘work’. This does not change depending on the mode of travel or that it was solely for going to the place of work.
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