In a significant decision for employers and workers, the Court of Appeal has clarified the legal status of travel time under the National Minimum Wage (“NMW”) Regulations 2015. The central question was whether time spent by workers travelling from their homes to and from their work as ‘flock technicians’ at farms around the country should be treated as “time work” and therefore paid at the NMW.

The Employment Tribunal (“ET”) initially ruled that travel time should be paid as time work. The Employment Appeal Tribunal (“EAT”) overturned that decision, concluding that travel time did not meet the legal definition of time work under the Regulations. HMRC appealed, but the Court of Appeal (“COA”), dismissed the appeal and upheld the EAT’s ruling.

Until the actual Court of Appeal hearing, where the Respondents represented themselves, JMW Solicitors LLP acted on behalf of Taylor Services Limited and others.

The Law

The NMW Act 1998 entitles workers to be paid at least the NMW for work done during a defined pay reference period.

Regulation 30 of the NMW Regulations 2015 provides the primary definition of time work: “by reference to the time worked by the worker.” This definition is refined by Regulation 34, which deals specifically with travel time. Regulation 34 treats certain travel as time work only if specific conditions are met.

ET’s Findings

The ET concluded that the workers’ travel time should be treated as time work. The Tribunal found that the workers were typically picked up from or near their homes in company vehicles and had no practical alternative means of transport.

HMRC argued that travelling hours were “very much longer and more arduous than ordinary commuting and were completely under [the Respondents’] control.” The ET agreed, finding that the workers were under the employer’s control during travel and that this time should be paid.

The Tribunal ultimately concluded that the travel did not occur during time when the workers “would otherwise be working,” and therefore Regulation 34 did not apply.

EAT’s Findings

The EAT overturned the ET’s decision, holding that the Tribunal had erred by treating the travel as time work under Regulation 30 without properly considering Regulation 30 and 34 in tandem. The EAT emphasised that the Regulations must be read as a whole, as established by the Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8 (“Mencap”).

The EAT rejected HMRC’s argument that Mencap could not be applied to travel time cases. It held that just as sleep-in shifts are not considered work unless the worker is awake and working, travel is not work unless it meets the specific criteria in Regulation 34.

COA’s Judgment

The COA agreed with the EAT. The COA reaffirmed that “work” in Regulation 30 means actual work.

In interpreting Regulation 34, the Court explained that it sets out a general rule: travel is treated as time work only if it is for the purposes of time work and occurs at a time when the worker would otherwise be working.

The Court concluded that the ET had misunderstood the law by relying solely on Regulation 30 and failing to integrate Regulation 34 into its analysis. Since the travel did not meet the conditions of Regulation 34, it could not be treated as time work.

The “Anomaly”

HMRC argued that the case revealed a potential anomaly: that employers could avoid paying for long travel times by choosing to pick up workers from home. While the Court acknowledged this concern, it reiterated that any such anomaly must be addressed through legislative reform, not judicial interpretation.

Conclusion

The issue was summarised succinctly: the workers were not doing “actual work” while travelling. They were not performing their duties and were free to use the time as they wished. Regulation 34 exists precisely because travel is not inherently work - it only becomes time work under specific and limited conditions.

The Court concluded that the appeal must be dismissed. The travel time in question did not qualify as time work under either Regulation 30 or 34.

This ruling confirms that travel time is not automatically compensable under the NMW and that only specific types of travel qualify under the Regulations. It also reinforces the importance of interpreting law as a coherent whole. This case could prompt a review of whether the current framework adequately protects workers. However, in the interim, unless travel meets the criteria of Regulation 34, it is not time work and, therefore, not subject to the NMW.

Technically an appeal to the Supreme Court is available to HMRC. It will be interesting to see if they seek to pursue one.