The Commissioners for HMRC v Taylors Services Ltd & Ors

In the national minimum wage scheme, time work is a technical concept which must be construed by reading the relevant provisions together. Regulation 34 deems travel to be time work only where it is for the purposes of time work and occurs when the worker would otherwise be working, subject to the home-to-work exception.

Mere travel remains outside regulation 30, even if it is lengthy, arduous, employer-directed or undertaken in employer-provided transport. Travel during which the worker performs actual work may qualify. Where the wording is clear, the court must not fill a perceived gap through a broad purposive construction. Any anomaly is for the Low Pay Commission and Secretary of State to address.

HMRC issued notices assessing the respondents for national minimum wage arrears and penalties in respect of workers’ journeys from home to poultry-farm assignments.

The Employment Tribunal upheld the notices, finding that the journeys were time work under the National Minimum Wage Regulations 2015. The Employment Appeal Tribunal allowed the respondents’ appeal, holding that the journeys were not time work and were not brought within the deeming provision for travel: [2024] EAT 102.

HMRC appealed, arguing that the EAT had misinterpreted regulations 30 and 34, particularly in light of Royal Mencap Society v Tomlinson-Blake. The central issue was whether the travel from home to the first assignment, and back, counted as time work.

1. Appeal dismissed unanimously. Lady Justice Elisabeth Laing gave the principal judgment. Baker LJ agreed with both judgments, and Underhill LJ agreed with the result and stated separate core reasons.
2. The National Minimum Wage Regulations 2015 form a technical scheme implementing social policy. The meaning of time work cannot be determined from regulation 30 in isolation. Regulations 20, 30 and 34 must be read together. That whole-instrument approach was required by Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8. The Low Pay Commission’s reports confirmed, but did not control, the construction.
3. Regulation 34(1) contains a general rule with two cumulative conditions: the worker must be travelling for the purposes of time work and must otherwise be working at that time. The rule is subject to an exception for travel between the worker’s home, or qualifying temporary residence, and a place of work or assignment. Regulation 34(2) clarifies that the general rule includes travel between assignments and travel where working hours are uncertain.
4. Regulation 35(1) confirms that absence from work, including travel, is not time work unless brought within regulations 32 to 34. Mere travel is therefore not work within regulation 30. A worker who actually performs work while travelling may nevertheless be doing time work.
5. On the Employment Tribunal’s findings, the workers were not performing their poultry duties while travelling. They would not otherwise have been working during the journeys, including the journeys beginning in the early hours, and regulation 34(2)(a) and (b) did not apply to the journeys to the first assignment. The home-to-assignment exception provided an additional answer.
6. The Employment Tribunal had erred in law by deciding the regulation 30 issue without taking regulation 34 into account. Its factual assessment could not stand because it rested on that legal error. The case was one of the rare cases in which only one answer was available, so no remittal was required. The tribunals were also right that any drafting anomaly should be addressed by the legislature or the statutory mechanisms involving the Low Pay Commission.

• Court of Appeal (Civil Division): dismissed HMRC’s appeal.
• Employment Appeal Tribunal: allowed the respondents’ appeal from the Employment Tribunal, [2024] EAT 102.
• Employment Tribunal: dismissed the respondents’ appeals and upheld the notices.