The Employment Appeal Tribunal (EAT) has held that time spent ‘just travelling’ is not ‘time work’ for the purpose of national minimum wage in the case of Taylor’s Services Ltd v HMRC. In this case the employer routinely collected workers from their home addresses, often at antisocial hours, and transported them up to four hours away in one of the employer’s minibuses to reach farms where work was then carried out for the employer.

HMRC concluded that the time spent in the minibus formed part of the working day and issued a notice of underpayment of national minimum wage to the employer, a position with which the employment tribunal agreed. This position was formed by taking a “sequential approach to Regulation 30 and 34 of the National Minimum Wage Regulations 2015” when the EAT found that the regulations should be applied together. This means that time spent ‘just’ travelling is not “time work” for the purposes of regulation 30 unless it is deemed to be such by regulation 34. 

In this case the workers were not working in the ordinary sense when on the minibus, and were not deemed to be engaged in time work by virtue of regulation 34 (which states that travel from home to place of work is not "time work".) The “only conclusion open to the Tribunal on the facts as it found them to be was that the workers were not engaged in “time work” for the purposes of regulation 30 of the 2015 Regulations”. Even if the worker is obliged to undertake the travel on a designated form of transport, this does not make the travel work.

The Employment Appeal Tribunal found in favour of the employer, and allowed the appeal. The judgment found that when applying the two regulations together, ‘just travelling’ was unable to be found to be “time work” for the purposes of Regulation 30 unless deemed as such by Regulation 34 (which states that travel from home to place of work is not "time work"). 

Therefore just sitting on a minibus is not ‘work’ - for it to be ‘work’ there would have to be some other element done while ‘travelling’ eg. preparing documents for example. The mere fact that the worker is obliged by the employer to undertake the travel – using their minibus - to travel from home to a specified location does not turn the travel into work.   The EAT did acknowledge that this drafting does seem inherently unfair, stating at para 47 that “if the employer requires the employees to be collected from, and returned to home, then they are not (on my analysis) entitled to NMW, but if the employer requires them to come to its premises first, then the subsequent travel is deemed by regulation 34 to be “time work” and the NMW is payable”.