In this case, the Court of Appeal held that time spent travelling between a worker's home and various work sites did not amount to 'time work' under the National Minimum Wage Regulations 2015 (the NMW Regulations). This was the case even though the journeys were long (up to four hours each way), and undertaken on minibuses provided by the employer.
Background
All workers are legally entitled to be paid at least the National Minimum Wage (NMW) for each of the hours they have worked. The NMW Regulations set out a formula for assessing compliance, whereby the worker's total remuneration in a pay reference period is divided by the number of hours worked, or deemed to have been worked, in that period.
HMRC is responsible for enforcement of the NMW. Where HMRC issues a notice of underpayment to an employer, the employer may appeal to the employment tribunal.
For the purposes of this case, the key provisions of the NMW Regulations define 'time work' as work in respect of which the worker is contractually entitled to be paid by reference to the time that they have worked. Time spent travelling is to be treated as 'time work':
- Where travelling is for work purposes, and the worker would otherwise be working, then time spent travelling will be considered 'time work'
- However, time spent travelling between the worker's home and place of work / place where an assignment is carried out is specifically excluded
- Time when the worker 'would otherwise be working' is stated to include hours spent travelling from one work assignment to another, and hours of travel where it is uncertain whether the worker would otherwise be working because they have variable hours
Facts
Taylors Poultry Services and Taylors Services Limited (the employers) engaged workers on zero-hours contracts and supplied them to poultry farms around the country, to carry out tasks including catching poultry, giving them injections and grading them. The workers travelled between their homes and the farms in minibuses provided by the employers, with journey times of up to four hours each way. In 2020, HMRC decided that the time the workers spent travelling from their homes to and from the farms was time for which the workers should be paid the NMW. HMRC issued notices of underpayment to the employers, assessing total arrears of pay at over £60,000 and penalties at almost that amount.
The employers appealed to the employment tribunal, which held that the workers should be paid the NMW for the travelling time and upheld the notices. The employers then appealed to the EAT, which allowed the appeal, holding that the workers should not be paid the NMW for the travelling time. Unless the worker was doing 'work' while travelling, the time spent travelling was not work within the meaning of the NMW Regulations. The fact that the travel was for the purposes of doing work for the employers, or that the employers obliged the workers to do it, did not make it 'work'. While on the minibus, the workers would have been free to talk, sleep, read, or even search and apply for other jobs online.
HMRC's appeal to the Court of Appeal was unsuccessful. 'Work' is an ordinary English word, but 'time work' is a technical phrase used in the NMW Regulations. The Court therefore held that the relevant provisions of the NMW Regulations must be interpreted together to identify what the phrase 'time work' was intended to cover, as established by the Supreme Court in the Royal Mencap Society case (see our previous alert here).
Applying the wording of the NMW Regulations in this case, the travel time was excluded both because it was not time when the workers would otherwise be working, and because the travel was between the workers' homes and the farms.
The Court also commented that the meaning of the NMW Regulations was clear, and it would not be appropriate for the Court to adopt a purposive interpretation to avoid what might feel like an unjust outcome for the workers and the potential for manipulation by employers. (For example, if the minibus travel had been provided from the employers' premises rather than from the workers' homes, then the time spent travelling on the employers' minibuses would have counted as hours of time work for which the workers would have been entitled to the NMW.) If there was a gap in the legislation, it would be for Parliament to address it, potentially with the assistance of a report by the Low Pay Commission.
What does this mean for employers?
This decision helpfully confirms that hours spent travelling between home and a mobile worker's first assignment will not count as hours of time work for NMW purposes. However, the NMW Regulations are notoriously complex, and employers may face both enforcement action from HMRC and being 'named and shamed' by the government for any non-compliance – even if it is inadvertent. Under the Employment Rights Bill, responsibility for NMW enforcement is expected to pass to the Fair Work Agency in April 2026, at which point we may see an increase in enforcement action. Employers are therefore encouraged to conduct regular audits of their pay arrangements so that they can proactively identify and remedy any potential breaches.
