REWARD
claimant in finding vacancies within the respondent ● multiple sales positions became available during the claimant’s notice period but, despite the claimant’s long history in car sales, there was no attempt to actively consider them for these roles. The ET awarded £19,566 in compensation, with no Polkey deduction. The decision was appealed to the EAT. The respondent appealed on three grounds: ● the ET had erred in law by applying the wrong test when considering whether the respondent had properly considered alternative employment ● the ET had substituted its own view rather than whether the dismissal was within the range of reasonable responses ● a Polkey reduction should have been applied. All three grounds were dismissed by the EAT and the decision of the ET was upheld. The EAT agreed with the various points the ET had made; the employer had failed to properly consider alternative employment. The EAT also held that the respondent’s process fell outside the range of reasonable responses and was unfair. It didn’t matter that the ET had failed to mention the band of reasonable responses, as it was clear what was in the mind of the ET when the judgment was made. A reasonable employer would have proactively assisted the claimant in their search for alternative employment within the organisation and wouldn’t have blocked them from applying for roles. Regarding a Polkey deduction, the EAT also upheld the ET’s decision on this point. The respondent had failed to fulfil its responsibilities in considering alternative
employment and so, a reduction in the compensation was not appropriate.
from the workers’ homes to the location of their first assignment wouldn’t be treated as “time work” under Regulation 34, because it wasn’t carried out at a time when the workers would “otherwise be working”. However, while the workers weren’t performing their contractual duties during the travel time, the travel itself was a “part and parcel” of the role, and it was time that was under the control of the employer. Therefore, the ET said, although the time spent travelling wasn’t “work” in its ordinary sense, the control exerted by the employer meant that it was “time work” under Regulation 30, and so NMW was owed. However, the EAT said it was necessary to consider the whole of the regulations to understand what “work” means. As the ET had acknowledged, the workers weren’t working in the normal sense while travelling and the ET should have concluded that this time wasn’t work time for the purposes of Regulation 30. The EAT overturned its decision. The time spent travelling when the workers were collected from home wasn’t “time work” and didn’t attract NMW, even when the employer had control over the transport. The CoA upheld the decision of the EAT. They held that NMW regulations must be viewed as a whole, not in isolation. While regulations provide the starting definition of “time work”, the provisions that follow setting out activities that would be “time work” or should be treated as such are also relevant. Overall, the CoA upheld the EAT’s findings that the travel time wasn’t working time. It didn’t fall within Regulation 34 (as per the ET’s original judgment) and it wasn’t relevant that the travel time was controlled by the employer. This didn’t make it fall within work time under Regulation 30. n
Time spent travelling to a place of work isn’t “time worked” for the purposes of national minimum wage (NMW) In the case of HM Revenue and Customs (HMRC) v Taylor’s Services Ltd, the Court of Appeal (CoA) had to consider whether travel time to a place of work, where the arrangements were under the control of the employer, constituted “time worked” for NMW purposes. The employer provided transport for its staff to and from their homes to farms at various locations around the country. The journeys could be very long, with up to eight hours a day spent travelling, on top of the time spent performing their duties. Travel on the employer’s transportation was required and the route and pick up / drop off times and locations were set by the employer. If the worker missed the minibus, they would lose the day’s work. The time spent travelling on the minibus was paid for, but at a rate below NMW. In 2020, HMRC decided the workers should be paid NMW for the time spent travelling to the first assignment of the day and returning home from the last. It issued notices of underpayments totalling around £62,000 of wage arrears, plus penalties. This decision was appealed to the ET. The ET was tasked with deciding: l if the travelling hours were “time work” for the purposes of Regulations 30 and 31 in the National Minimum Wage Regulations 2015, and, l if not, were the travelling hours deemed work for the purposes of Regulation 34? The ET decided the time spent travelling
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| Professional in Payroll, Pensions and Reward |
Issue 114 | October 2025
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