CA-2024-001613 - [2025] EWCA Civ 956

Fecha: 24-Jul-2025

Conclusions

Conclusion

92.

For those reasons I would dismiss this appeal.

Lord Justice Baker:

93.

I agree with both judgments.

Lord Justice Underhill:

94.

I agree that this appeal should be dismissed. Because the issue raised by it may be relevant in other cases I will state my core reasons briefly in my own words, but they do not differ in essence from those of Elisabeth Laing LJ or indeed of Judge Stout at paras. 40-50 of her excellent judgment (save that her particular point based on the provisions in the tax legislation about “ordinary commuting” – see para. 46 – did not feature in the submissions before us).

95.

The essential question for the ET was whether the workers’ travel from their homes to the farms to which they were assigned for that day counted as “time work” within the meaning of regulation 30 of the National Minimum Wage Regulations. The full text of the regulation appears at para. 15 of Elisabeth Laing LJ’s judgment, but for present purposes the only point that matters is that “time work” must be “work”.

96.

As Elisabeth Laing LJ points out, “work” is not defined in the Regulations. 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 pointed out in vivid terms at para. 50, to use their time as they wished, subject to the constraints of being in the back of a minibus. HMRC’s case, which the ET accepted, is that they were nevertheless working in a broader sense because their time was not wholly their own: they were making a journey, in transport provided by their employer and which they were obliged to use, for the purposes of being able when they got there to do what I might call (without prejudging the question) their “actual work”. But, for the reasons which follow, if the regulations in Chapter 3 are read as a whole, and in particular if regulation 30 is read in the light of regulation 34, it is clear that that is not the sense in which the word “work” is used in this context.

97.

Elisabeth Laing LJ sets out the terms of regulation 34 at para. 16 above. The elements in it are as follows:

(1)

The primary provision is that travelling will be treated as time work if (i) it is “for the purposes of time work” and (ii) the worker would “otherwise [that is, if they were not travelling] be working”. The paradigm of a case where the worker would “otherwise be working” is where there are recognised working hours and during those hours the worker is required to travel from one place to another to do their work: examples are legion but would include travelling to a client’s office for a meeting or between assignments at different sites. That primary provision is subject to an exception, in the second half of paragraph (1), and a gloss, in paragraph (2).

(2)

The exception in the second half of paragraph (1) is (in summary) where the travel is to and from the worker’s home and a place of work. In the case of the typical daily commute to a job with set hours that exception would appear to be unnecessary because the worker would not “otherwise be working” outside those hours. But it would apply in cases where, for some particular reason, a worker was required to travel from their home during what would normally be working hours: an example given in para. B218.03 of Harvey on Industrial Relations and Employment Law (which contains a particularly helpful analysis of regulation 34) is where the worker is working at home but is then called into the office for a meeting.

(3)

As for paragraph (2), this is not an exhaustive definition of the phrase “[would] otherwise be working” because it only identifies two particular cases which it “includes”. Neither case is relevant for our purposes so I need say nothing about them.

98.

It is the necessary premise of the primary provision under regulation 34 that while a worker is travelling “for the purposes of time work” they are not doing “work” within the meaning of regulation 30: that is why the hours in question are to be treated as hours of time work – in other words, they are to be deemed to be doing time work even though they are not doing work within the meaning of regulation 30 itself. To put it more shortly, regulation 34 confirms that “work” in regulation 30 means “actual work”. (Of course, as Judge Stout acknowledges at para. 44 of her judgment, there are many situations in which a person will be doing actual work while travelling; but we are not concerned with a case of that kind.)

99.

That conclusion is dispositive of the issue in this appeal. “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).

100.

I would have reached that conclusion even apart from the decision of the Supreme Court in Mencap that “sleeping-in” did not constitute time work. But I agree with Judge Stout and Elisabeth Laing LJ, for the reasons that they give, that its reasoning (which is essentially to the same effect as that of this Court in that case) applies equally to time spent travelling.