Is travel to the first assignment of the day considered ‘time work’?

Is travel to the first assignment of the day considered ‘time work’? Most might expect a straightforward answer given the clear wording of the National Minimum Wage Regulations 2015, however this was only recently clarified in a decision from the Court of Appeal.

In HMRC v Taylors Services Ltd (TSL), TSL engaged zero-hours contract workers for poultry industry tasks across the UK. TSL provided a minibus to transport workers, often collecting them from their homes and taking them to their first assignment of the day. These journeys could be lengthy – sometimes adding up to eight hours to the working day. For most of the relevant period, workers were contractually entitled to £2.50 per hour for travel time.

In 2020, HMRC determined that travel time should be paid at the national minimum wage (NMW) rate and issued underpayment notices and penalties. The matter proceeded to the Employment Tribunal (ET).

HMRC argued that the travel time was more demanding than ordinary commuting. The ET agreed, finding that workers were under TSL’s control during travel, qualifying it as time work under Regulation 30. However, it held that Regulation 34 did not apply, as the travel did not occur during time when workers would otherwise be working. TSL appealed.

The Employment Appeal Tribunal (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 Regulations 30 and 34 together. It emphasised that both must be read as a whole, referring to Royal Mencap Society v Tomlinson-Blake. HMRC then took the matter to the Court of Appeal (CoA).

The CoA interpreted Regulation 34 and clarified 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 during a period when the worker would otherwise be working. As this was not the case here, the workers were not entitled to NMW for such travel time.

What should your business do?

This decision suggests that when an employer provides transport to collect workers from their homes and drop them off at their workplace, those workers may not be entitled to the NMW for that travel time under Regulation 34. It highlights a potential loophole in the legislation. While the ET appeared to seek a remedy for this perceived injustice, the CoA emphasised that such matters fall within the remit of the government.

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