Poultry Workers Not Entitled to NMW for Travel to Farms

The Employment Appeal Tribunal (EAT) has ruled that poultry workers were not ‘working’ while travelling from their homes to farms where they carried out their duties and back again, and were not entitled to be paid the National Minimum Wage (NMW) for the time spent travelling.

The employees worked on poultry farms around the country. Their employer provided a minibus to collect them from their home addresses each day and take them to the first farm, and take them home again from the last farm. These journeys could sometimes take about four hours. HM Revenue and Customs took the view that the time these journeys took should be remunerated at the NMW and issued Notices of Underpayment. The employer appealed to the Employment Tribunal (ET).

Upholding the notices, the ET held that the time spent travelling was ‘time work’, as defined by Regulation 30 of the National Minimum Wage Regulations 2015. It found, however, that if the travel time had not been ‘actual work’, it would not have been deemed to be time work under Regulation 34 of the Regulations. The employer made a further appeal to the EAT.

The EAT observed that the Regulations indicated that travel from home to work should not count as time work, whether or not it was to a permanent place of work. It noted that this arguably created an injustice, as if an employer required employees to come to its premises before travelling to assignments, the onward travel would count as time work for the purposes of Regulation 34.

However, the ET had acknowledged that the employees were not engaged in work in the ordinary sense while on the minibus. The ET should have read Regulations 30 and 34 together: had it done so, it would have concluded that the journeys did not constitute time work. Holding that, on a proper interpretation of the law, that was the only possible conclusion, the EAT accordingly remade the decision and allowed the employer’s appeal against the notices.