The Taylors Services Ltd and Mr I Taylor and Mr E Taylor T/a Taylors Poultry Services v Commissioners for HM Revenue and Customs: 2604226/2020
| Jurisdiction | England & Wales |
| Judgment Date | 08 September 2021 |
| Citation | 2604226/2020 |
| Date | 08 September 2021 |
| Published date | 28 September 2021 |
| Court | Employment Tribunal |
| Subject Matter | Notice Appeal |
EMPLOYMENT TRIBUNALS
Appellants: (1) Taylors Services Limited
(2) Mr Ivan Taylor and Mr Eric Taylor T/A Taylors Poultry
Services
Respondent :
(1) The Commissioners for her Majesty’s Revenue and Customs
Heard at: Nottingham
On: 19 and 20 May 2021
Before: Employment Judge Broughton (Sitting alone)
Representatives
Appellants: Mr Boyd - counsel
Respondent : Mr Rowell - counsel
RESERVED JUDGMENT
The Appeals against the Notices of Underpayment pursuant to section 19C (1)
of the National Minimum Wage Act 1998 brought by the First and Second
Appellants are not well founded and are dismissed in their entirety.
The decision to serve the Notices was correct. The amounts and arrears
specified are correct.
REASONS
Background
1. This case concerns Appeals brought by Taylors Services Limited (TLS)
the First Appellant and
Mr Ivan Taylor and Mr Eric Taylor trading as Taylors Poultry Services
(TPS) the Second Appellant, against Notices of underpayments
(Notices) issued by the Respondent pursuant to section 19 of the
National Minimum Wage Act 1998 (NMWA).
2. The Respondent assessed TPS for national minimum wage (NMW)
arrears of £32,128.42 and penalties of £28,741.64.
3. The Respondent assessed TSL for arrears of £30,259.84 and penalties
of £30,103.80.
4. An Order was made by Regional Employment Judge Swann on 25
November 2020, for Appeals to be heard together [45].
5. The workers whom it is alleged were underpaid for NMW purposes
(hereafter referred to as the Workers) provided their labour under a ‘zero
hours’ contract.
6. The business of both Appellants’ involved the provision of labour to
poultry farms around the country. The Workers were worked on the
farms of various clients of the Appellants’ as Flock Service Technicians.
Their duties essentially involved; catching poultry, providing injections,
grading and loading and unloading poultry. The farms were located
throughout England and sometimes even Wales and Scotland. The
Appellants’ office/business unit is based in Nottingham. The Workers
travelled to the farms on vehicles supplied by the Appellants’ at no cost.
.The return journey time to the farms varied, between 1 and 8 hours.
7. It is common between the parties that the Workers were engaged in time
work pursuant to regulation 30 of the National Minimum Wages
Regulations 2015 (NMWR) and thus entitled to be paid the NMW while
carrying out time work. The Notices relate to alleged underpayments of
NMW in respect of the travelling time to and from the farms.
8. The Respondent submitted a joint response to the claims [53 - 63]. It is
a brief response in which it states that the HMRC Compliance Officer
found that the pay the Workers had received was below the NMW. The
period in question is the beginning of the financial year 2013/2014 to 18
August 2016 (Period of Review). After this date it is accepted by the
Respondent that the Workers were paid the NMW for travelling time to
and from the farms.
Issues.
9. The issues for determination by this tribunal, agreed at the outset
(subject to the preliminary point on calculation set out below) are;
(1) Were the Travelling Hours actual work for the purposes of the regulation’s 30
and 31?
(2) If not, were the Travelling Hours deemed work for the purposes of regulation
34?
(3) [Is the quantum of the Notices correctly calculated?]
Evidence
10. The parties provided an agreed bundle of documents numbering 896
pages. References in this judgment to numbers in square brackets are
to the pages in that bundle.
11. The Appellants did not produce any witness statements or call any
witnesses.
12. The Respondent called two witnesses;
(i) Ms Jowita Romanek , an HMRC Officer who was involved in the
investigation along
with Ms Deane, and took over responsibility for it when Ms
Deane retired, from June 2018 [342]; and
(ii) Mr Gregory, who worked for TPS from 2005 on and off until 15
July 2015 as a Flock Technician.
13. Both witnesses had produced witness statements, gave evidence and
were cross examined by the Appellant.
Preliminary matters
Time Limit
14. At the outset of the hearing, I noted that the Appeals were presented on
the 20 November 2020 however, the date of the Notices was 21 October
2020. A period of 30 days.
15. An appeal must be made before the end of the 28-day period pursuant
to section 19C NMW Act. The 28-day period is defined in section 19 (8)
as; “the period of 28 days beginning with the date of service of the notice
of underpayment.”
16. I was then taken to documents in the bundle [790 – 792] and informed
that these documents were delivery receipts from Royal Mail confirming
receipt of the Notices and dated 26 October 2020. After taking
instructions the Respondent did not challenge this evidence or that the
Appeals were presented in time. I was satisfied that the Appeals had
been presented in time and that this tribunal therefore has jurisdiction to
proceed to hear the Appeals.
Calculation
17. Counsel indicated that the Appellant’s intended to argue that the basis
for the calculation by the Respondent, namely that it has used tracker
information from the vehicles as the basis of calculating the travel times
to and from the farms, failed to take into account that the Workers were
collected not from the Appellant’s office but from their homes (or
otherwise locations nearby) and as such, if the travelling time held to be
time work but not waiting time, the calculations must be incorrect in that
those collected later would spend less time on the minibus. The
Respondent objected to what it asserted was an attempt to introduce a
new ground of defence and further, that the tracker information had
been supplied by the Appellants’ as the most reliable information it had
for calculating the travelling times. After taking further instructions
however, the Appellants confirmed that they were not pursuing this line
of argument because the tribunal will need to determine the issue of
whether travel is time work and whether that includes waiting time and if
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