![CA-2024-001613 - [2025] EWCA Civ 956](https://backend.juristeca.com/files/emisores/logo_Sjvxvlx.png){kind=logo}
Introduction
Introduction
This appeal is about the correct construction of regulations 30 and 34 of the National Minimum Wage Regulations 2015 (2015 SI No 621) (‘the Regulations’). The Regulations were made under various powers conferred by the National Minimum Wage Act 1998 (‘the Act’). The issue is whether time spent by workers travelling from their homes to and from their work as ‘flock technicians’ at farms around the country was ‘work’ and should be paid at the national minimum wage (‘the NMW’), or not. The Commissioners for HM Revenue and Customs (‘HMRC’) issued notices assessing that the employers (‘the Respondents’) were liable for arrears of NMW and penalties (‘the notices’) in relation to that travel time.
The Respondents appealed to the Employment Tribunal (‘the ET’) against the notices. The ET held that the workers should be paid the NMW for that travelling time and upheld the notices. The Respondents appealed on a point of law to the Employment Appeal Tribunal (‘the EAT’). The EAT held that the workers should not be paid the NMW for that time, and allowed the appeal. HMRC appealed from the EAT’s order allowing the appeal from the ET, with the permission of Bean LJ.
HMRC argue, on four grounds, that the EAT misinterpreted ‘time work’ in Chapter 3 of the Regulations, particularly in regulations 30 and 34.
The EAT failed to give those regulations a purposive construction, contrary to Uber BV v Aslam [2021] UKSC 5; [2021] ICR 657 (‘Uber’).
The EAT wrongly applied the reasoning in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8; [2021] ICR 758 (‘Mencap’) because Mencap is about sleep-in workers, not travel to work.
The EAT was wrong to hold that travel time was not ‘time work’ in particular in the light of the ET’s findings about the control of that travel exercised by the Respondents.
The EAT was wrong to interfere with the ET’s findings of fact that the workers were doing ‘time work’ when they were travelling to and from work.
At some point before the EAT heard the appeal, one of the Respondents, Taylors Services Limited (‘TSL’), had been dissolved, after a creditors’ voluntary liquidation. The other Respondents are Mr Ivan Taylor and Mr Eric Taylor, trading as Taylors Poultry Services (‘TPS’). At the EAT hearing TPS were represented by counsel, Mr James Boyd. Mr Boyd also drafted a skeleton argument for this appeal. He was no longer representing TPS by the time this appeal was heard. Mr Ivan Taylor appeared in person, supported by his accountant, Mr Slack. HMRC were represented by Miss Ruth Hughes KC. She did not represent HMRC below. I thank both counsel for their skeleton arguments, and Miss Hughes for her oral submissions. Mr Taylor also made brief oral submissions, for which I also thank him.
For the reasons given below, I would dismiss this appeal. In short, the EAT’s approach to the construction of the Regulations was correct. The ET therefore erred in law in holding, on the basis of regulation 30 alone, that the hours which the workers spent travelling to their assignments was ‘time work’ for the purposes of the Regulations. But the ET’s alternative conclusion, based on careful reasons, that the travel time was not caught by regulation 34, was correct. It followed that the ET should have set the notices aside.