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IN JUNE 2023, the government published a list of more than 200 companies that had failed to pay the National Minimum Wage and with it comes potential reputational damage writes Joe Weston (main picture), a solicitor at Wilson Browne Solicitors in Northampton.
Many of these companies claimed their failure was due to oversights and misinterpretations rather than wilful disregard, which shows how easy it is for a company to inadvertently fall foul of the legislation and be “named and shamed”.
This is a particularly tricky issue for the logistics sector – there has always been some debate around what counts as “working time” for the purposes of NMW legislation. With increasing travel delays, and with the government having considerable focus on the issue, it’s important for logistics companies to understand working time.
Travel time and the National Minimum Wage
Generally, time spent travelling for business reasons will be treated as working time. That’s with the exception of travel between:
- The home and normal place of work;
- The home and an assignment.
However, questions creep in when a worker is delayed while travelling (for work). Despite employers having no control over the delays, they must still pay the national minimum wage on average, including those hours spent while stuck in traffic.
This may not be an issue where the level of pay is beyond the NMW, but employers would be well-advised to review their drivers’ contracts and any relevant policies to ensure that there is no risk of underpayment.
If the driver is not paid NMW for the entirety of their travel time, even when they are stuck in traffic, HM Revenue & Customs has several enforcement measures available. These include civil penalties and criminal prosecution. The individual drivers will also be able to bring claims for unlawful deductions from wages or breach of contract.
Delays and Rest Breaks
In general, a driver of a goods vehicle should not drive for more than 9 hours in a day: even though a delay may be outside any person’s control, time spent waiting in traffic will count towards a driver’s daily driving limit. Exceeding 9 hours a day could bring criminal consequences, including fines and imprisonment. Drivers who complain may also have enhanced protection from detriment and, depending on their employment status, dismissal.
For advice on this issue, contact the Wilson Browne Solicitors employment team on 0800 088 6004.
Wilson Browne Solicitors is also offering a free review of a contract of employment or handbook,
which will help to ensure that any terms relating to pay and working hours are legally compliant.