Court of Appeal upholds decision that poultry company employees’ travel time was not part of working time under minimum wage rules

About this case:

• Citation:
  [2025] EWCA Civ 956
• Judgment:
  External link
• Court:
  England and Wales Court of Appeal
• Judge:
  Lord Justice Underhill

HMRC had issued notices against Taylors Services Ltd, since dissolved after a creditors’ voluntary liquidation, and Taylors Poultry Services Ltd, the trading name of second and third respondents Ivan and Eric Taylor, assessing that they were liable for arrears of NMW and penalties in relation to travel time. While HMRC was successful before the Employment Tribunal, the Employment Appeal Tribunal allowed an appeal by the respondents and held that workers did not need to be paid the NMW for that time.

The appeal was heard by Lord Justice Underhill, Lord Justice Baker, and Lady Justice Elisabeth Laing. Ruth Hughes KC appeared for the appellants, with second respondent Ivan Taylor appearing in person. The third respondent, Eric Taylor, was not present or represented.

Completely under control

The respondents engaged workers on zero hours contracts and sent them to various farms around the country to perform various tasks. In 2020, HMRC decided that the time spent by the workers travelling to and from these farms was time for which they should be paid the NMW and issued notices to TSL and TPL with a combined value of around £62,000 in wage arrears and a further £59,000 in penalties.

In evidence, the ET recorded that workers for the respondents had consistently stated that they travelled to work sites across the country in company minibuses and that they were picked up from their homes or close by. None of the work sites were accessible by public transport and they were typically at least two hours away from the workers’ homes, in some cases four hours. The ET found that the travelling hours were longer and more arduous than ordinary commuting and completely under the respondents’ control and found in favour of HMRC.

Permission to appeal was granted by the EAT solely on whether the ET had erred in law in concluding that the workers’ travel time was “time work” for the purposes of Chapter 3 of the Regulations, rather than being caught by the deeming provision in regulation 34. Referring to the Supreme Court’s decision in Mencap v Tomlinson-Blake (2021), the EAT considered that regulation 34 was designed for situations where a worker required to travel at a time when they otherwise would have been working. The concept of “ordinary commuting” as referred to by the ET was irrelevant, and any injustice caused in this case was for legislators to address.

It was argued by HMRC that the EAT had failed to give the Regulations on time work a purposive construction and wrongly applied the reasoning in Mencap, which was about “sleep-in” workers rather than travel. Further, the EAT was wrong to hold that the travel time was not “time work” in light of the ET’s findings about the control of that travel exercised by the respondents, and wrong to interfere with those findings of fact.

‘Work’ means actual work

In an opinion with which the other judges agreed, Lady Justice Elisabeth Laing said of the construction of the Regulations: “The ET understood that hours spent travelling for the purposes of time work, when the worker ‘would otherwise be working’, are ‘treated as time work’. It also understood that if the travel was at a time when the worker would not otherwise be working, that travel time is not to be treated as hour of time work, regardless of the purpose of that travel. The ET, therefore, was not only entitled, but bound, as it did do, to investigate whether or not, when they were travelling, the workers ‘would otherwise be working’.”

She continued: “The ET then considered whether the workers would ‘otherwise been working’ within the definition in regulation 34(2)(a). The ET considered that the natural meaning of this provision (‘between which’) was that it was intended to cover ‘a situation where the worker is travelling from one place to another to do assignments’. This case was not concerned with such travel but with travel from home, or from the employer’s premises, to the first site. This provision did not therefore apply to the travel in issue, but would apply to ‘their travel between sites’. That conclusion was not only open to the ET on the facts, but obviously correct.”

In a supporting judgment, Lord Justice Underhill added: “In one obvious sense the workers were plainly not working in the course of their journeys to and from the farms. They were not performing any of the tasks that they were employed to do: on the contrary, they were free, as Judge Stout [of the EAT] pointed out, to use their time as they wished, subject to the constraints of being in the back of a minibus.”

He concluded: “Work in regulation 30 means ‘actual work’, and the ET itself found – correctly and inevitably – that the Respondents’ workers were not doing actual work while they were travelling. It formed no part of the ET’s reasoning, or HMRC’s case before us, that the workers in this case qualified to be treated as doing time work in accordance with regulation 34. That is because, on its own findings, the travel was not during time in which they would otherwise have been working, but also because, even if it were, it would fall within the terms of the exception in the second half of paragraph (1).”

HMRC’s appeal was accordingly dismissed.