Engineer unfairly dismissed after travel pay dispute, tribunal rules

Case highlights the need for contracts to be updated if journey time pushes the working week over the legal maximum, say experts

An engineer was unfairly dismissed after he resigned over a dispute about his pay while travelling for work, a tribunal has ruled. 

The employment tribunal (ET) ruled Thomas Holloway, who worked as a heating engineer for Aura Gas from January 2015 until his resignation in September 2019, was unfairly constructively dismissed after the company refused to pay him overtime for travelling between jobs. 

The tribunal found the failure to pay this “amounted to a fundamental breach of contract and to a fundamental breach of the implied term of trust and confidence in Mr Holloway’s contract of employment with the company”. Because this was the principal reason for Holloway’s resignation, it amounted to a wrongful and unfair constructive dismissal.

Holloway was taken on as an apprentice at Aura Gas in January 2015 before becoming a qualified heating fitter. He reported to owner and managing director, Gary Robinson.

When he joined, Holloway’s conditions of employment included clauses that covered the fact he would be required to travel to other locations as reasonably required in the performance of his role, and he would be expected to work 45 hours a week. The tribunal heard Holloway spent the majority of his time at locations other than his specified “normal place of work”, so predominantly at customers’ premises and travelling to suppliers to pick up parts. 

He told the tribunal his jobs were “fairly local” initially. He also said it was “expected [he would] have approximately 30 minutes of travel time, which was often incorporated into contractual hours” and that it “wasn’t uncommon during summer months to have slightly earlier finishes”.

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However, Holloway said that “progressively over time” the distance of travel to jobs increased. He told the tribunal: “It was known for me to travel up to five to six hours per day additionally to my contracted hours. We no longer had earlier finishes to counteract this. Initially, I did not check my payslips thoroughly enough to realise I wasn’t being paid anything additional to my salary.”

In October 2018, a colleague informally notified Holloway that Robinson had changed the company’s “unofficial travel rules”, which meant the first and last hour of travel for work would be unpaid. His colleague said this had been in place for around a year already by that point. Holloway asked the company’s administrator about this change, and she told him it had “always been the case” that Aura Gas did not pay the first and last hour of travelling time.

On 15 October 2018, Holloway and Robinson exchanged emails about the policy. Robinson said: “Travel is definitely not included in your working day, and we do not pay you to travel unless over the hour.” In a later email dated 7 November, Robinson said Aura Gas’s travel terms were “standard and in line with other businesses in our industry and for this reason I would not look to revisit the structure”.

In June 2019, Ian Morgan, Aura Gas’s general manager, was asked by Robinson to investigate a number of concerns about Holloway. This included Holloway’s alleged refusal to work his contractual hours, falsifying time sheets, dragging out jobs and not completing “reasonable requests of work tasks”. Holloway was asked to attend an investigatory meeting on 18 June.

Holloway wrote to Martin Cornell, technical manager at Aura Gas, on 11 June, setting out a number of formal grievances, including that he was not paid for “all the overtime” he incurred while travelling between jobs; that the company had reduced his pay from “double time to time and a half”; that he was “always given the job that involves the furthest distance”; and that he had been undermined by Robinson while at work.

On 14 July, before the formal grievance hearing had taken place, Morgan produced a report on the grievances raised by Holloway. He said the pay for travel time had been referred to the company’s solicitors for advice. Morgan also added that Holloway had signed a contract which laid out the overtime rate, that work distribution was “fair”, there was no evidence that Robinson’s treatment of Holloway was “intimidatory,” and there was “nothing undermining” about Robinson’s behaviour.

The official hearing took place on 25 July, and Holloway’s grievances were rejected a few days later on 29 July. Holloway appealed this ruling on 1 August, but this was dismissed on 11 September. 

Holloway handed in his letter of resignation on 13 September. In the letter, he said the company’s refusal to take his grievances seriously or to “reduce the excessive hours (including travel time)” had put his and others’ health and safety “at risk”, which had made his position untenable. 

Holloway brought claims of unfair dismissal and breach of contract in relation to unpaid wages to the employment tribunal. 

The tribunal ruled Hollway’s complaint of breach of contract because of unpaid overtime wages was well founded. Additionally, it ruled Holloway was wrongfully and unfairly constructively dismissed by Aura Gas because of the travel time wage dispute. 

The tribunal ordered Aura Gas to pay £6,374 for unpaid overtime wages, £3,503 for unfair dismissal compensation and £2,058 for wrongful dismissal. 

Joanne Moseley, senior associate at Irwin Mitchell, said such disputes were common, explaining that hours spent travelling could push someone’s working week over the 48-hour legal maximum – which is averaged over a 17-week period unless extended by agreement. "If it does so, businesses must try to ensure that affected workers sign an opt-out agreement,” she said.

Moseley said the UK's national minimum wage regulations explicitly excluded time spent travelling to and from work from the determination of what counts as working time for the purposes of pay. "This means that employers can decide whether to pay for travel to the first and from the last appointment and, if so, at what rates – which should be clearly set out in the employee’s contract," Moseley said.

"With the technological options available, employers can ask employees to log in as soon as they start to travel to their first job and then to check in when they get there. Or they can rely on timesheets and make randomised checks to make sure that the time claimed appears to be reasonable," Moseley added.

A spokesperson for Aura Gas said the company respected “the factual finding of the employment tribunal”. They added: “This claim arose as a result of a contractual and policy dispute on travel time, historical in nature. The tribunal reached certain findings that in effect reached a compromise between each party's respective positions on the dispute.”

Holloway could not be reached for comment.