The claimants, employers of workers on zero hours contracts, provided compulsory transport by minibus for their workers to and from their home addresses to poultry farms around the country. The revenue decided that the time that the workers spent travelling to and from farms was time that should be remunerated at the national minimum wage (“NMW”) and accordingly issued notices of underpayment. The claimants appealed to the employment tribunal. The tribunal took a sequential approach, which mandated, first, a consideration of whether the workers were engaged in “time work” for the purposes of regulation 30 of the National Minimum Wage Regulations 2015 whilst travelling and secondly, a consideration of the travel time exception in regulation 34(1). The tribunal concluded that the travel was “time work” because it was onerous, unpleasant, lengthy in duration and mandated by the employer and that it did not have to go on to consider the regulation 34(1) exception. Allowing the claimants’ appeal, the Employment Appeal Tribunal held that the tribunal had erred in law by reaching a decision based on regulation 30 alone, and by not using regulation 34 to inform that decision. The revenue subsequently appealed on the ground, inter alia, that the appeal tribunal had misinterpreted “time work” in regulations 30 and 34 of the 2015 Regulations by failing to give those regulations a purposive construction.
On the appeal—
Held, appeal dismissed. There were four starting points for construing the National Minimum Wage Regulations 2015. First, the regulations dealt with the detailed implementation of social policy, in an area in which a statutory body, the Low Pay Commission (“LPC”) had particular expertise and statutory functions. Second, there were mechanisms which ensured that if the LPC was concerned, for example, that the unusual facts of an appeal had brought to light a potential anomaly or loophole in the 2015 Regulations, it could bring that to the attention of the Secretary of State, and the Secretary of State could then decide whether there was a loophole and if so, whether and how that loophole should be closed. Third, the 2015 Regulations were technical provisions designed to achieve uniform treatment for the purposes of the national minimum wage (“NMW”), of a wide range of different facts. Fourth, unlike some tax legislation, there were no explicit anti-avoidance provisions in the 2015 Regulations. As a result, in construing the 2015 Regulations, the court’s task was to interpret the words and if they were clear, to give effect to them. “Work” was an ordinary English word but “time work” was not. Instead, “time work” was a technical phrase used by the draftsman of the 2015 Regulations to express one of the important concepts in that legislative scheme. Regulation 30 was the primary definition of time work but that was refined by the provisions which followed it, by which some activities were said to be time work and others were to be “treated as” time work. In that technical field, it was therefore essential that the relevant provisions had to be read as a whole, in particular, it was the necessary premise of the primary provision under regulation 34 that while a worker was travelling “for the purposes of time work” they were not doing “work” within the meaning of regulation 30, i e they were to be deemed to be doing time work even though they were not doing work within the meaning of regulation 30 itself. To put it more shortly, regulation 34 confirmed that “work” in regulation 30 meant “actual work”. In the present case, the essential question for the tribunal was whether the time spent by workers travelling from their homes to and from the farms counted as “time work” within the meaning of regulation 30 of the 2015 Regulations and should be paid at NMW. Since the workers were free to use their time as they wished, subject to the constraints of being in the back of a minibus, the appeal tribunal had been correct in concluding that the tribunal had erred in law by reaching a decision, on the basis of regulation 30 alone, that the hours which the workers spent travelling to their assignments was “time work” for the purposes of the 2015 Regulations (paras 5, 61–64, 71, 73–76, 77, 90, 92, 93, 94–96, 98–100).
Ruth Hughes KC (instructed by Solicitor, Revenue and Customs) for the revenue.
Ivan Taylor appeared in person.
The second claimant did not appear and was not represented.