Travel time and National Minimum Wage

Misunderstandings over what constitutes working time for National Minimum Wage (NMW) purposes are a frequent cause of errors and problems for employers. Making errors around travel time is particularly common, and although some sectors and job roles will always require more travel than others, care should always be taken by employers whenever workers travel outside of their usual commute to work.

In addition, workers who are paid by reference to what they produce at home and attend their employer for ‘reporting purposes’ would still be able to count that travelling time as working time. 

When can travel time become working time?

Travelling for work, in some cases, can be treated as working time for NMW purposes. The most common journeys include:  

• Typical day to day carrying out of a schedule of appointments (which takes a worker to different clients or locations each time)
• Any journeys that commence after the worker has attended their normal workplace eg. Between two employer sites
• Attending job related training at the employers’ request

Recent case law has shed new light on travel time. The Employment Appeal Tribunal judgement in Taylors Service Ltd (Dissolved) 2) Mr Ivan Taylor & Mr Eric Taylor t/a Taylors Poultry Services v The Commissioners for HM Revenue and Customs found that when considering travel time, it is important to differentiate between what is travel by workers to the first assignment of the day and what is work carried out for the employer whilst travelling – with the latter constituting working time for NMW purposes.

The precise purpose nor whether the travel is incurred inside or outside of normal working hours are not important factors. The key considerations are the requirements placed on workers by the employer.
In our view, the EAT judgement highlights the importance of considering all the facts on an employer -by-employer basis, with a one size fits all travel time solution an unlikely possibility.

Journey time

When quantifying travel time that is considered work, contentions that a journey would not have taken as long had it been undertaken using a different route or mode of transport are not relevant considerations for HMRC: it is the actual journey and the time spent travelling that matters.

In measuring journey time, time spent waiting e.g. in traffic or for a travel connection, will also likely need to be considered for NMW purposes. 

However, it is important to remember that if the worker chooses to interrupt or break the journey for personal reasons or to take a rest break, that time would not be considered work for NMW purposes.

Protecting your organisation

It is important for employers to understand what constitutes working time for NMW purposes, and travel time is a core component of this. As such, it is necessary for employers to ensure appropriate processes are in place to properly identify and record travel time. 

The above scenarios only cover the most typical cases we encounter when supporting employers with NMW compliance, but it is not exhaustive and other potential risks may exist.

If you have any questions or concerns regarding your NMW position, please get in touch with one of our expert team, who will be happy to help. 

 

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