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Travelling to work is working time confirms the ECJ

In July we told you about a decision given by the Advocate General (in the case of Federacion de Servicios Privados del sindicato Comisiones Obreras…

In July we told you about a decision given by the Advocate General (in the case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco) that time spent travelling to work should be counted as working time for peripatetic employees. However, this was a provisional view only.

The full Judgment of the European Court of Justice has now been received. It confirms that, for workers without a fixed or habitual place of work, both the time spent travelling to their first customer call, and the time spent travelling home from their last customer visit, is working time.

We recap the facts of this case and what the decision means for your business.

Facts

The Court of Justice of the European Union considered the cases of Tyco workers based in Spain, who installed and maintained security equipment in homes and commercial premises located throughout a geographical area to which they were assigned. Historically, those workers started working when they picked up their vehicle and assigned customer list each day from their provincial office. However, these offices were later closed. The workers had no fixed base and received their daily customer list through an app on their mobile phones. The employer’s position was that working time only started when they arrived at their first customer and finished when they left the last customer’s premises at the end of the day.  The European Court was asked to decide if the workers’ journeys to and from these customers should be working time under the Working Time Directive.

The European Court agreed with the Advocate General and decided that those journeys constituted working time. The Court took the view that a worker’s time is either working time or a rest period. European law makes ‘no provision for other situations falling between the two’.

There are three strands to test for ‘working time’ and the Court concluded these journeys satisfied them all. 

  • To be at the workplace: This was satisfied as travelling for a peripatetic worker was an integral part of the job;
  • At the disposal of the employer: Even through the workers had ‘a certain freedom’ during these journeys which they did not have whilst working at the customers premises, the reason they were travelling at all was because of the employer’s wishes as to the journeys they should undertake;
  • Carrying out activities/duties: The Court reiterated the Advocate General’s view that travel was an integral part of their duties as peripatetic workers.

The employer in this case tried to argue that the ‘activities and duties’ of the workers exclusively involved providing technical service to customers and NOT travelling. However, the Court emphatically stated that this argument could not be accepted. Travelling to customer premises was a necessary means of providing those services and as such could not be separated from other working time.

What does this mean for me?

This decision does not mean that all commuting is working time. For most people commuting to work is not work. However if you have workers who don’t have a base office or location, it now appears likely that working time starts when they leave home, not when they visit their first job of the day. When calculating weekly working time limits or minimum rest periods (such as the need for 11 hours consecutive rest in each 24 hour period) that time must be counted as working time.

The case also has very specific facts as these workers were given a specific itinerary for the day’s work. The position may not be exactly the same for all travelling workers. However this may be important for those of you with home-based workers as it may effectively change the way that the UK Working Time Regulations will be applied. In particular, if you have peripatetic workers who live outside their patch or at a remote location, this Judgment may significantly increase their working time.

Comment

Working time is not only important for hours of work and breaks, but is also critical to calculating the national minimum wage. This Judgment does not discuss the national minimum wage which is not governed by European Law. However, there is often a degree of overlap in the UK in the interpretation of the legal regimes governing the minimum wage and working time.

With the National Living Wage set to be introduced from April next year the interpretation of working time may become even more important. The new increased statutory minimum payment will mean that the precise detail of what counts as working time will impact the bottom line for many businesses.

Additionally, the Court acknowledged that paying employees for these journeys could create an additional burden for the employer, as they would probably want to more closely monitor employees at these times. However, it observed that this was ‘an inherent consequence of its decision to abolish regional offices’ and require its employees to be based at home.

Working time issues are notoriously complex and if you do have such issues please do take advice on your particular arrangements. 

When stuck in a traffic jam on the way home you might also want to consider that the view of the Advocate General is that you are having a “rest period” enabling you to recover from your working day, whilst the travelling salesman in the car next to you is considered to be working and in need of a full rest period after he gets home.    

If you have any questions about this update, please get in touch with your usual contact in the Weightmans employment, pensions and immigration team, or email Phil Allen, Partner at phil.allen@weightmans.com.