COMPLIANCE
homes in company vehicles and had no practical alternative means of transport. Therefore, their travel time was found to be completely under the control of their employer. It was also a material fact that travelling hours were “much longer and more arduous than ordinary commuting”. The EAT overturned that decision, concluding that travel time didn’t meet the legal definition of time work under the 2015 regulations. This is because the travel didn’t occur during time when the workers would “otherwise be working”. The case of Royal Mencap Society v Tomlinson-Blake was applied. The EAT held that just as sleep-in shifts aren’t considered work unless the worker is awake and working, travel isn’t work unless it meets the specific criteria in the 2015 regulations. HMRC appealed to the CoA, who dismissed the appeal and upheld the EAT’s ruling. The CoA was clear that travel will be treated as “time work” only if it is: ● for the purpose of “time work”, and ● occurs at a time when the worker would otherwise be working. The CoA concluded that the ET had misunderstood the law by failing to consider whether the workers would “otherwise be working” when coming to their decision.
Therefore, the travel time in question didn’t qualify as “time work” under the 2015 regulations and there was no requirement for workers to be paid the NMW. Practical implications It’s clear from the CoA’s decision that travel isn’t inherently to be treated as work. The court decided that the workers weren’t doing “actual work” while travelling, they weren’t performing their duties and were free to use the time as they wished. The EAT stated in its judgment; “If the employer requires the employees to be collected from, and returned to the 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. HMRC has therefore argued that the case has revealed a potential anomaly: employers could avoid paying for long travel times by choosing to collect workers from home. While the Court acknowledged this concern, it reiterated that this can only be rectified through legislative reform, not judicial interpretation. This case could prompt a review of whether the current framework adequately protects workers. However, in the interim, employers and workers should consider the travel time will not be subject to NMW unless it meets the criteria of occurring “at a time when the worker would otherwise be working”, even when the employer controls travel arrangements. o
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| Professional in Payroll, Pensions and Reward |
Issue 113 | September 2025
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