National minimum wage: travel time not ‘time work’ 

The Court of Appeal has upheld a finding that time spent by poultry workers travelling to and from farms for the purpose of carrying out their duties is not ‘time work’ for national minimum wage purposes. 

Commissioners for HM Revenue and Customs v Taylors Services Ltd (dissolved) and others [2025] EWCA Civ 956 

Facts of the case 

The workers were employed on zero-hour contracts to provide services to poultry farms across the country. They were collected from their homes each day and transported by minibus to their assigned locations, and home again, sometimes travelling up to eight hours each day. The time spent travelling to and from the assignments was paid at the rate of £2.50 per hour. 

In 2020, HMRC issued notices of underpayment to the employer of around £62,000 wage arrears plus penalties. It had concluded that the time the workers spent travelling should be remunerated at the rate of the national minimum wage (NMW). The employers challenged the notice of underpayment before an employment tribunal, which agreed with HMRC’s conclusion that the travel time should be remunerated as ‘time work’ within the definition of the NMW Regulations 2015. 

The employer’s appeal to the EAT was upheld last year. The EAT found that the time spent travelling to and from the farms was not ‘time work’ under the NMW Regulations, meaning that the workers were not entitled to receive NMW in respect of the travel time. See our previous summary of the EAT decision.  

HMRC appealed the EAT decision to the Court of Appeal. 

Court of Appeal decision 

The court has dismissed HMRC’s appeal, upholding the decision that the workers were not entitled to be paid the NMW in respect of their travelling time. It agreed with the EAT’s interpretation of the NMW Regulations and its conclusion that the employment tribunal had been wrong to find that the hours spent by the workers travelling to and from their assignments was ‘time work’.  

The court considered whether the workers in question would be caught by the rule under Regulation 34, which provides that travelling is treated as ‘time work’ if it is for the purposes of time work and the worker (if not travelling) would otherwise be working. The court was satisfied that in this case, the workers would not otherwise be working during the periods they were travelling to and from assignments. In any event, since the workers were travelling to the assignments from their home address (rather than from the employer’s premises), they fell within an exemption in the Regulations that provides for such travel time not to count as ‘time work’.    

The Birketts view 

This decision confirms that for the purposes of NMW entitlement, travel between a worker’s assigned place of work each day and their home address does not count as ‘time work’ and therefore does not have to be paid in accordance with the applicable rate of NMW. 

The Court of Appeal did not expressly endorse the EAT’s view that this case reflects an anomaly in the drafting of the NMW Regulations, or that it created an “injustice” for the workers in question. It noted that any anomaly could be corrected following a report by the Low Pay Commission, or by amendment of the Regulations by the Secretary of State.  

The Government recently published its 2024 report on the National Living Wage and NMW enforcement. This reports £7.6 million arrears of pay for over 52,000 workers and 723 penalties issued to non-compliant employers, totalling £5.2 million. In response to the Low Pay Commission’s enforcement recommendations (published in December 2024), the Government proposes to: 

• inform workers of their rights and employers of their obligations, with a review of NMW guidance in 2025-26 

• end one-sided flexibility through measures aimed at protecting zero-hours workers under the Employment Rights Bill 

• increase the number of employers ‘named and shamed’ for non-compliance with the NMW. 

There are currently no confirmed proposals for amending the NMW Regulations, although NMW enforcement will become the responsibility of the new Fair Work Agency, to be established under the Employment Rights Bill.