What counts as working time for National Minimum Wage (NMW) purposes has become an increasing area of focus for HMRC.

Workers must be paid at least NMW for all time they are actually working, and there are specific regulations which set out what counts as working time depending on the type of work the worker is performing.

In a recent judgment, the Court of Appeal has provided employers with some clarity concerning the treatment of travel time as working time.

An eight hour commute and NMW implications

The case concerned a group of workers employed by Taylor Services Ltd as ‘flock technicians’. The workers were responsible for servicing poultry farms across the UK. They were picked up from or near their homes in Taylor Services’ vehicles and transported to various farm locations, often spending long hours travelling to and from sites – in some cases up to four hours each way. However, they were not paid for this travel time.

On a NMW inspection by HMRC, it concluded that this travel time to and from their homes was ‘time work’ under the NMW Regulations 2015 (the Regulations) and the workers should be paid at least the NMW for this time.

The employer appealed HMRC’s conclusion to the Employment Tribunal, and it has since gone through several stages of appeal, ending up in the Court of Appeal.

Understanding NMW regulations and travel time

Where a worker is paid on an hourly basis, they are usually deemed to be performing ‘time work’ for the purposes of NMW compliance. What counts as working time for a ‘time worker’ is set out in Regulations 30–35 of the NMW Regulations 2015.

Regulation 30 states that ‘time work’ is any kind of work, other than salaried hours work, where a worker’s pay is tied to the length of time they work (eg £12 an hour) or to their output over a set period (eg the number of items they produce during an eight-hour shift). This also applies in cases where a worker is usually paid based on their output but is guaranteed a minimum hourly rate if they don’t reach the expected threshold.

Regulation 34 states that the hours a ‘time worker’ spends travelling for work don’t count as working hours if it’s just their normal commute from their home or temporary residence to their workplace or the place where they are carrying out the work assignment.

However, travel time does count as working hours if it takes place when the ‘time worker’ would otherwise be working. This includes cases where the worker has to travel between different places to carry out assignments and those places are not occupied by the employer. It also applies when the person’s hours of work vary in terms of length or when they occur, so when they are travelling, it’s not possible to be certain whether they would otherwise be working or not.

Court of Appeal ruling on travel time and NMW compliance

The case has since passed to the Court of Appeal following several stages of appeal, which disagreed with HMRC’s conclusion. HMRC had argued that the technicians were under the employer’s control during travel and had no practical alternative means of transportation. This interpretation aligned with an interpretation of the Regulations that employer-directed time is deemed to be ‘working time’ for NMW compliance purposes.

However, the Court of Appeal decided that travel time must meet specific criteria set out in Regulation 34 of the Regulations to count as working time. Because the workers were not performing duties during travel and were free to use the time as they wished, the time spent travelling did not meet the threshold for ‘actual work’ under Regulation 34.

The court acknowledged that the outcome might seem unfair, particularly in cases where workers spend long hours travelling without pay, as was the case here. However, it stressed that the court’s role in this case is to interpret the law as it has been drafted, not to rewrite it.

How the court ruling affects employers’ NMW obligations

While the case concerned an unusual amount of travelling time between home and the place of work, it does provide some clarity on when travel amounts to working time.

Employers should therefore be reviewing what travel their workers are undertaking and whether they are required to perform any duties during this time to establish whether they are entitled to be paid NMW during this time. However, it is important to distinguish travel from one assignment to another, which would be treated as working time under the NMW Regulations.

The decision is also specific to ‘time workers’. The Regulations are less prescriptive about travel time if the worker is performing ‘unmeasured work’ – meaning work that does not fit into the definitions of ‘salaried work’, ‘time work’ or ‘output work’. This includes cases where there are no associated specified hours or times when the work must be undertaken or when the employer only needs the person to work when needed or when work is available. Cases such as these could result in a different conclusion. It’s an important reminder for employers that categorising the workforce for NMW compliance purposes is a critical step in compliance.

How our employment legal team can help

With HMRC remaining proactive with its enforcement of NMW, and significant penalties and reputational harm for those who fail to comply, employers must be vigilant in their approach to compliance. While the Fair Work Agency will replace HMRC from 1 April 2026, the approach taken is unlikely to change and it will have a broader remit of employment rights to enforce.

Employers should therefore ensure that they regularly review their NMW compliance procedures, in particular around the treatment of working time to ensure that it is being captured correctly and properly factored into NMW compliance calculations.

If you have any questions or concerns about National Minimum Wage, please contact Charlie Barnes, Andrew Timpson or your regular RSM contact.

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