Does travelling to and from work (for up to eight hours a day) count as work and payable at NMW rates?

That was the issue the Court of Appeal had to determine in the case of HMRC v Taylors Services Ltd.

The law

The National Minimum Wage Regulations 2015 set out the rules relating to when the NMW should be paid. The regulations differentiate between four categories of working time:  

• time work (work that is paid by reference to the time that a worker works, such as hourly paid work)
• salaried hours work (where the worker is paid for a fixed number of hours a year, paid in regular instalments)
• output work (work paid according to the worker’s productivity); and 
• unmeasured work (a residual category which catches any other work). 

Different rules apply to each type of work.

Regulation 20 deals with travelling time generally and regulation 34 explains when travelling is treated as hours of time work.

Facts

Taylors engaged workers to assist on chicken farms. They were paid the NMW for the time they worked.

They were picked up in a company minibus, at or near their homes, to travel to farms. Journey times averaged two hours each way but, occasionally, involved an eight hour round trip on top of their normal working day. The workers were paid an allowance to cover their travelling time which was below NMW rates.  

HMRC said that they should be paid the NMW for their travel time. It issued notices of underpayment and penalties amounting to approximately £120,000. Taylors challenged the enforcement notice at an employment tribunal.

The tribunal held that the workers should be paid the NMW for their travelling time and upheld the notices. It was swayed by the fact that the travel requirements for these workers were ‘very much longer and more arduous than ordinary commuting and completely under the Respondent’s control' and amounted to time work under regulation 30.

Taylors successfully appealed to the EAT. It said that the tribunal was wrong to conclude this was time work. Unless the worker was doing 'work' while travelling, the time spent travelling was not work within regulation 30, even though it was ‘onerous unpleasant and lengthy’. The fact that the travel was for the purposes of doing work for the employer, or that the employer obliged the worker to do it, did not make it 'work'. Workers could talk, snooze, read, listen to music or watch a film to pass the time. 

It said that the Supreme Court's decision in Mencap about sleep-in shifts applied to travelling time: they were neither ‘available for work’ or ‘working’ under regulation 30.

It also concluded that travel time could not be deemed to be time work under regulation 34 because this only applied where the workers would ‘otherwise be working’. That wasn't the case here.

HMRC appealed that decision to the Court of Appeal.

Decision of the Court of Appeal

The Court of Appeal upheld the EAT's decision and held that the workers were not entitled to receive the NMW for their travelling time. 

It made the following points:

• Although ‘work’ is an ordinary, easy to understand word, the concept of ‘time work’ is a technical phrase and isn't precisely defined. The Court of Appeal says that, under regulation 30, it means ‘actual work’. 
• Time spent travelling (where no work is being done) will only be treated as ‘actual work’ if it falls within regulation 34. 
• Regulation 34 provides that a person will be treated as working if their travel is a) for the purposes of work and b) at a time when they would otherwise be working. There is an exception to this where the travel in question is between the worker's home and their place of work.
• These farm workers were only working when they arrived at the farm and they knew, in advance, what time they were due to start work. It could not be said, therefore, that they were travelling when they would otherwise be working.
• They were only entitled to be paid the NMW for work they undertook after they arrived at the first farm and if they had to travel to other farms during the same day. Similarly, they were not entitled to receive the NMW for returning home from the last farm they worked at that day. 

Tips for other employers

Time spent travelling is defined in regulation 20. It includes time spent on a journey (using any form of transport including walking), waiting for transport, and at the end of a journey before the workers can resume work. 

You do not have to pay your staff the NMW for their daily commute from home to their workplace where they have fixed hours (such as a set start and end time or where those hours are agreed in advance) because this is not time when they would otherwise be working. This is true, even where the employee has to travel to a different location, a greater distance away from their normal workplace. 

However, if they are performing work during their commute (such as working on a train) they should be paid for that time. 

Similarly, if your staff usually work from a specific location - even if that's their home - and you ask them to travel during their usual working hours, you must pay them for this, even if they aren't doing any ‘real work’.

It's also worth remembering that there is no connection about what amounts to working time under the NMW regulations and the Working Time Regulations. Under the WTRs mobile workers with no fixed or regular workplace who are required to travel to different locations to perform work are treated as working throughout that time and should be given adequate rest breaks - including daily and weekly rest. 

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