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

HMRC argued, and the EAT commented in paragraph 47 of its judgment (see paragraph 53, above), that the facts of this case reveal a potential injustice or anomaly. The potential anomaly is that whether or not a worker’s travel time counted as hours of time work can be influenced or manipulated by an employer’s decision in a case like this to provide transport and to pick up the workers from their homes, with the apparently unjust result, in this case, that up to eight hours a day when the workers were travelling did not count as hours of time work. An argument the other way, put by Mr Taylor in his brief oral submissions to us, is that the Respondents’ base is not in an urban area, not all the workers live near that base, and the vast majority of the workers cannot drive and do not have cars, so that they would find it difficult to get to the base in the first place. The ET explored this issue to some extent, and I am not able to say whether or not the facts of this case do reveal an anomaly in the drafting of the Regulations. There is at least one relevant gap in the evidence (see the last sentence of paragraph 39, above). But if there is such an anomaly, this statutory scheme provides the means of correcting it, either a report by the expert statutory body, the LPC, or amendment of the Regulations by the Secretary of State (see paragraphs 6-7, above). They are in a much better position than is this court to decide whether there is an anomaly, and whether and if so exactly how the regulations should be re-drafted to correct it.