Taylors Service Ltd (Dissolved) & Ors v The Commissioners for HMRC

For national minimum wage purposes, the meaning of time work under regulation 30 of the National Minimum Wage Regulations 2015 must be determined by reading that regulation with the travelling provision in regulation 34.

Mere travelling is not work. It does not become time work because the journey is long, onerous, controlled by the employer, contractually required, or paid by reference to time. Time spent travelling counts only where the worker is actually working while travelling, or where regulation 34 treats it as time work. Travel between home and the first assignment, and the return journey, falls within regulation 34(1)'s exclusion.

The appellants supplied zero-hours workers to poultry farms. They collected workers from home in minibuses and took them, sometimes on lengthy journeys, to their first assignment and home after their last assignment.

HMRC issued Notices of Underpayment on the basis that this travel time attracted the national minimum wage. The Employment Tribunal dismissed the employers' appeals under section 19C(1) of the National Minimum Wage Act 1998. It found that the travel was time work under regulation 30 of the National Minimum Wage Regulations 2015, although it would not have been deemed time work under regulation 34.

The EAT considered whether the Tribunal had wrongly considered regulations 30 and 34 sequentially, rather than as an integrated scheme.

1. Appeal allowed. The Tribunal erred in law by deciding that the travel was time work under regulation 30 without considering regulation 34 at the same time.

2. The approach in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8 applies. Provisions within the time-work scheme must be read together as a harmonious whole. Regulation 34 shows that, ordinarily, travelling is not work; it identifies the travel which is instead treated as time work.

3. Accordingly, just travelling is not work under regulation 30. It remains travelling even where it is undertaken for the employer's purposes, required by the employer, controlled as to route, time or transport, unusually lengthy, or remunerated under the contract. A worker may perform time work while travelling, for example as a driver or by carrying out work during the journey. That was not this case.

4. The Tribunal had found that the workers performed no work in the ordinary sense while on the minibus. It had also correctly found, in the alternative, that their home-to-first-assignment and return journeys were not treated as time work by regulation 34. The Tribunal's reliance on the journeys being more than an ordinary commute was beside the point. Regulation 34 does not adopt the ordinary-commuting distinction in the tax legislation.

5. On the facts found, only one result was legally open: the workers were not engaged in time work. The EAT set aside the Tribunal's decision and, under section 35(1)(a) of the Employment Tribunals Act 1996, remade it by allowing the appellants' challenge to the Notices of Underpayment.

• Employment Appeal Tribunal: allowed the employers' appeal, set aside the Tribunal's decision, and remade the decision by allowing the appeal against the Notices of Underpayment.

• Employment Tribunal: on 14 September 2021, dismissed the employers' appeals under section 19C(1) of the National Minimum Wage Act 1998 and upheld the Notices of Underpayment.