National Minimum Wage is currently £12.21 per hour for those aged 21 or over. But misunderstandings about what counts as working time often lead to errors and issues for employers.

The Supreme Court has confirmed that it is not payable for sleep-in shifts – save when the sleep-in worker is actually working (Mencap v Tomlinson-Blake). Similarly, individuals undertaking unpaid volunteering with no contract or expectation of pay are not entitled to it – provided it’s a genuine voluntary arrangement (Groom v Maritime and Coastguard Agency).

A recent Court of Appeal decision considered the position in relation to travel time, in a case where the employer was paying adult workers only £2.50 per hour for time spent travelling from their homes to their place of work.

Back to basics: what do the National Minimum Wage Regulations say?

The rules relating to national minimum wage apply (with a few specific exceptions) to workers in the UK.

The Regulations state that the national minimum wage is payable whenever an employee is working or is treated by the Regulations as working. But when will an employee be ‘treated as working’ by the Regulations?

Regulation 30 deals with hourly-paid workers, referring to it as a form of ‘time work’.

Regulation 31 states that “the hours of time work in a pay reference period are the total number of hours of time work worked by the worker or as hours of time work in that period”.   ‘Work’ is starting to not sound like a real word at this point…!

Regulation 34 is the key provision in relation to travel time. It states that travelling for the purposes of time work where the worker would otherwise be working is treated as working time, unless the travelling is between:

  • The worker’s home and their normal place or work.
  • The worker’s home and an assignment.

The case: HMRC v Taylor’s Services Limited

In Taylor’s Services Limited v HMRC zero-hours workers travelled to farms around the country providing poultry services. They were picked up by their employer’s minibus from their home addresses. Their travel time could be long – sometimes as much as eight hours a day. HMRC issued a notice of underpayments of national minimum wage. HMRC concluded that time spent by the workers travelling by minibus to and from their home addresses to their allocated farm ought to be paid at national minimum wage, but the employer was only paying them £2.50 per hour.

The Court of Appeal disagreed. It held 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. Regulation 34 states that travel from home to place of work is not time work. Unless there is ‘work’ being done while ‘travelling’, the time spent on that activity cannot be ‘work’ for the purposes of Regulation 30. The mere fact that the travel was travel that the worker was required by the employer to undertake – using their minibus – did not turn the travel into work.

Key points for employers

  • Hourly-paid workers are not generally entitled to national minimum wage for time spent travelling from home to work or from home to an allocated assignment.
  • However, if workers carry-out work during their travel time then national minimum wage may become payable.
  • Those who travel between different assignments during the working day should receive national minimum wage for this travel time.
  • Workers such as drivers, whose core role function is travelling, are entitled to national minimum wage for all hours spent travelling as work.
  • Employers wishing to rely on Taylor’s to argue that time spent travelling from home to an allocated assignment does not attract national minimum wage should be careful about any requirement for workers to ‘pop’ into the office on their way to any allocated assignment. Whilst the travel time from home to the office would not attract minimum wage, onward travel to the assignment is likely to. This point was actually made by the EAT in Taylor’s: “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”.