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Travel Time and the National Minimum Wage: Court of Appeal Clarifies the Position

Battle of the courts

The Court of Appeal has recently considered whether time spent by poultry workers travelling from home to work sites counts as ‘time work’ under the National Minimum Wage Regulations 2015 (NMW Regulations). In HMRC vs Taylors Services Ltd (dissolved), and others, the Court upheld the Employment Appeal Tribunal’s (EAT) decision that travel from home to work does not constitute time work for National Minimum Wage (NMW) purposes.

This judgment provides important clarification on the interpretation of Regulations 30 and 34 of the NMW Regulations and their interplay. It also highlights a potential legislative gap for mobile workers.

Background

Taylors Services Ltd and others employed poultry workers on zero-hour contracts, requiring them to work on farms across the UK. Workers were collected from their homes by a minibus arranged by the employer and transported to their first assignment.

Key facts:

• Journeys could last up to eight hours, in addition to a full working day.

• Collection often occurred in the early hours of the morning.

• Workers were paid £2.50 per hour for travel time, not the NMW.

• In 2020, HMRC ruled that workers’ travel time to and from farms should be paid at NMW, issuing underpayment notices of around £62,000 plus penalties.

Taylors Services Ltd appealed but the Employment Tribunal dismissed the challenge.

 What did the Employment Tribunal say in the first instance?

• It accepted workers were not working in the ordinary sense during travel.

• Found that travel was “time work” under Regulation 30, given the employer’s control over the journey.

What about the EAT, what did it say?

• The EAT overturned the ET decision.

• That Regulations 30 and 34 must be read together.

• Travel to and from home is generally excluded unless explicitly included under Regulation 34.

• It acknowledged unfairness (likely because the length of the travel time)  but stressed reform is for Parliament, and not for the courts.

What did the Court of Appeal say and which court did it agree with?

The Court of Appeal agreed with the EAT and dismissed the appeal.

• Regulation 30 defines time work, but later provisions, such as Regulation 34, narrow its scope.

• Under Regulation 34, travel for work purposes counts as time work only when the worker would otherwise be working.

Here’s the but…

• Exclusion: Travel between home and the place of work does not count, even if it is employer controlled.

Practical Implications for Employers

• Home-to-work travel is generally excluded from NMW calculations, even if lengthy and employer-organised.

• Travel between assignments during the day usually counts as time work.

• Payment above statutory minimum does not alter legal obligations.

• Risk of HMRC enforcement remains for misinterpretation of travel time rules.

Key Takeaways

• The Court confirmed that home-to-first-worksite travel is excluded from “time work” under the NMW Regulations.

• Employer control over transport arrangements does not convert travel into time work.

• Regulation 34 plays a critical role in limiting when travel counts as working time.

• Legislative reform may be needed to address fairness concerns for mobile workers.

Recommended Steps for Employers

• Review travel arrangements and policies for compliance with Regulations 30 and 34.

• Ensure clear contractual terms regarding payment for travel time.

• Audit payroll practices where employees travel extensively to avoid HMRC challenges.

• Monitor Low Pay Commission recommendations for possible future reform.