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

The EAT’s judgment is reported at [2024] ICR 1171. The EAT summarised the facts in paragraph 1. The Respondents engaged workers on ‘zero hours’ contracts and provided them to poultry farms around the country. They did various tasks: catching poultry, giving them injections, grading them, and loading and unloading them. In 2020 HMRC decided that the time which those workers spent travelling to and from those farms was time for which those workers should be paid the NMW, and issued the notices. The Respondents had exercised their right of appeal to the ET (conferred by section 19C(1) of the Act).

The EAT gave permission to appeal on one ground: it was arguable that the ET had erred in law in concluding that the relevant workers’ time travelling to the first assignment of the day and back again was ‘time work’ for the purposes of Chapter 3 of the Regulations, rather than being caught by the deeming provision in regulation 34.

The EAT referred to the decision of the Supreme Court in Mencap. Its summary of the decision was that ‘what constitutes “work” for the purposes of regulation 30 has to be interpreted in the light of regulation 32. As the drafters of regulation 32(2) evidently regarded a worker who is “asleep” as neither being “available for work” or “working” for the purposes of the Regulations, so time spent sleeping could not be “work” for the purposes of regulation 30’ (paragraph 20). The EAT quoted paragraphs 12, 35-47, 66-73, 86-89 and 96 of Lady Arden’s judgment.

The EAT summarised the reasoning of the ET in paragraphs 28-35. HMRC and the Respondents were represented by counsel at the ET hearing. It had been common ground in the ET that, while the workers were actually doing things to poultry, they were doing ‘time work’ within the meaning of regulation 30. It was also agreed that the Respondents had a ‘base premises’. The Respondents usually provided a minibus which collected the workers from their homes and took them directly to their first assignment. The workers were sometimes required to go first to the Respondents’ premises. It also seemed to be agreed that sometimes the journeys could be very long: up to four hours each way, so that the workers could be travelling for up to eight hours a day on top of a normal working day, or they could be collected from home in the middle of the night in order to reach the site of that day’s assignment in time for a morning’s work.

The issues which the parties agreed that the ET should decide included (1) whether the travelling hours were ‘actual work’ for the purposes of regulations 30 and 31, and (2), if not, whether the travelling hours were deemed to be time work for the purposes of regulation 34 (paragraph 9 of the ET’s judgment).

In paragraph 31 the EAT said that the ET had decided that the hours were ‘time work’ for the purposes of regulation 30(1). The ET had then said, in paragraph 253, that it did not need to deal with ‘the deeming provisions’. By that, it meant regulations 32 and 34. The ET nevertheless did so, briefly. In paragraphs 272-273, the ET concluded that if its conclusion about regulation 30 was wrong, the journeys from home to the first assignment would not be deemed to be time work by virtue of regulation 34, because they were not done at a time when the worker would ‘otherwise be working’.

The EAT commented that much of the ET’s judgment consisted of rehearsing the evidence. The recitation of the evidence was interspersed with findings of fact properly so called. In her oral submissions to us, Miss Hughes accepted this criticism of the ET’s judgment. The EAT said that the ET made findings about whether the Respondents had a contractual obligation to pay the workers for their time travelling. The EAT explained, by reference to regulation 30, why that was a potentially important issue. It also commented that the ET’s findings of fact on that issue were confused. It explained that comment in paragraph 33. The ET had concluded in paragraph 247, nevertheless, that the workers had a contractual entitlement to be paid for travel time to and from the first assignment, although the ET made no finding about the second necessary element, that the entitlement had to be ‘by reference to the time worked by the worker’. Both the parties to the appeal were content for the EAT to assume that the ET had made both necessary findings, and the EAT did so (paragraph 34). The ET’s findings about whether the workers were working when travelling were in paragraphs 242-252, which the EAT quoted in full (paragraph 35).

In paragraph 41 the EAT considered and rejected HMRC’s submission that the reasoning in Mencap could not be ‘read across’ to travel time cases. The EAT considered that the Supreme Court’s decision did not rest on the LPC’s reports, and the same conclusion would have been reached without the reports. The EAT relied on paragraph 46 of Lady Arden’s judgment and paragraph 87 of Lord Kitchen’s. ‘The Justices did not say that the reports led them to give a meaning to regulation 32 which they would not otherwise have given it’. It followed that, when interpreting the meaning of work in the Regulations, it was necessary to look at the Regulations as a whole ‘in order to understand what the drafters of the legislation considered “work” meant. Just as it was necessary to consider regulation 32 in order to understand that sleep was not work, ‘regulation 34 tells us that the drafter of the legislation did not consider that travelling was “work”, (both in its ordinary sense and including the specific travelling activities listed in regulation 20). That is why there is a deeming provision, and why in regulation 34(1) travelling is contrasted with the “working” which the worker might “otherwise” be doing’ (paragraph 42).

The EAT added that the drafter also considered that travelling would not be working even where ‘it was for the purpose of carrying out assignments at different places between which the worker was “obliged” to travel by the employer, hence the terms in which sub-paragraph (2)(a) is drafted’. The EAT quoted part of paragraph 35 of Lady Arden’s judgment (see paragraph 29, above) (paragraph 43). The EAT nevertheless acknowledged in paragraph 44 that there would be cases in which someone would be working while travelling and doing time work: drivers of various different vehicles such as buses, lorries and trains, and others working in public transport. The same applied to a person who was working while travelling; for example working on documents or having a business meeting.

In paragraph 45 the EAT rejected HMRC’s submission that, in some cases, travelling was a person’s work, and if they were paid by reference to the time they spent doing it, it would be ‘time work’ within the meaning of regulation 30, despite regulation 34. If the Regulations are interpreted as a whole ‘as the Supreme Court has held that we are required to do, “just” travelling is not work for the purposes of’ the Regulations. Unless the worker was doing ‘work’ while travelling, the time spent travelling was not work within regulation 30. The facts 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’. Nor could it make a difference if the form of transport, or time of travel, were ‘mandated’ by the employer. Those were just different ways in which a worker might be obliged by the employer to do something. ‘Nuances in the form that obligation takes cannot change what would ordinarily be understood as “travel” into “work”’ (paragraph 45).

The EAT explained in paragraph 46 why regulation 34 was not dealing with ‘ordinary commuting’, and why that concept was irrelevant. The ET’s concern that the workers were not doing an ‘ordinary commute’ was beside the point. The EAT recognised in paragraph 47 that this interpretation might be thought to cause injustice on these facts, for two reasons. First, the travel in this case was very long. Second, the regulations gave the employer significant power to decide whether or not workers are entitled to the NMW on such journeys, according to whether or not the employer required them to be collected from, and returned, to their homes.

Any such injustice was for the legislature to deal with. It might be tempting to uphold the ET for the benefit of the workers in this case, the EAT did not ‘consider that such a result would properly represent the law in the light of’ Mencap. The EAT was ‘bound to apply the terms of’ the Regulations ‘as drafted. The meaning of the Regulations is, following Mencap, sufficiently clear that there is no scope for an alternative purposive interpretation here’ (paragraph 48).

The EAT said that the ET had ‘frankly acknowledged’, in paragraph 243, that the workers were not ‘engaged in work in the ordinary sense while travelling on the minibus’. The EAT said that, ‘in the light of the law as I find it to be, that was an end of the matter’. If the ET had read regulations 30 and 34 together, rather than sequentially, it would have concluded that the workers were not doing time work on the bus (paragraph 49).

The EAT added that the ET’s ‘efforts to explain why it considered that the workers were working while sat on the minibus are in substance indistinguishable from the efforts of counsel in the Mencap case to argue that ‘sleep’ was ‘work’’. The Supreme Court had rejected that submission and the same ‘inevitably goes for the [ET’s] efforts in this case to find that travel was work because it was onerous, unpleasant, lengthy in duration and mandated by the employer’. It was, it seemed to the EAT, as it had seemed to the ET, ‘unavoidably still “travel” and not “work” applying the ordinary meaning of those terms’. The workers would have been ‘free to talk, snooze, read, and if they had the necessary electronic devices, to listen to music, watch a film or spend their time applying for more agreeable employment’ (paragraph 50).

In paragraph 51 the EAT decided that this was one of ‘those rare cases’ in which, once the law was properly interpreted and applied to the facts found by the ET, there was ‘only one right answer’. This reflected the parties’ agreement (see paragraph 39). Miss Hughes accepted in her oral submissions that, if the EAT’s legal analysis was correct, the EAT was also right that the case should not be remitted to the ET.