Amy Cunningham, Senior Associate at SG Employment Law, looks at recent case law that has confirmed that time spent travelling to and from work is counted as “working time” for employees with no fixed place of work and, the implications of this for employers.

Background

Until recently, it was not clear whether, where a worker has no fixed or habitual place of work, the time spent by the worker travelling to and from the first and last customer each day should be included within “working time”. Non-statutory guidance in the UK suggested that such travel time was not included.

However, a recent case in the European Court of Justice (ECJ) has confirmed that, to calculate the total working time of a worker who has no fixed place of work, the time that the worker spends travelling between their home and the first and last customer of the day counts as “working time” for the purposes of the Working Time Directive 2003.

Facts of the case

In this case (Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another), the company which specialised in the installation and maintenance of security systems, employed around 75 technicians who, after the closure in 2011 of their regional offices, each used a company vehicle to travel between their home and the first and last customer appointment of each day. In some cases, the distance from the technician’s home to the assignment in question was as much as 100km.

Previously, the company calculated a technician’s working time as starting from the time they arrived at their first assignment of the day and ending when they left their last assignment of the day, and counted the time spent travelling to and from the first and last appointments of the day as rest time.

Decision

The ECJ held that the first and last journeys of the day should be classified as “working time” for these technicians, since these workers had no fixed place of work and were carrying out duties on journeys to and from their customers, essentially because they were at their employer’s disposal during this time and acting under their employer’s instructions. It was relevant that, before the regional offices closed, the first and last journeys of the day, from the regional office to the customer and back, had been regarded as working time, and it was simply the departure point for those journeys that changed, and not the nature of the journeys themselves.

Implications for employers

During the case, the Spanish and UK Governments raised concerns about the risk of workers taking advantage of the journeys in order to do personal business at the beginning and end of each day. The ECJ simply said that employers could prevent potential abuse of the system by putting in place robust monitoring procedures.

The decision is likely to have an impact in any organisation where workers travel directly to and from service users or customers and have no fixed or habitual place of work. Obvious examples of such workers include those working in the care sector, mobile sales personnel and mobile engineers/maintenance staff. It will also be relevant to any employers who are contemplating changing from office based to more mobile operations.

It is important to remember, however, that it only applies to staff with no fixed place of work. Those workers who have an office (but who are mobile between their appointments or assignments) will not be caught.

Although the decision affects a relatively narrow category of workers (namely peripatetic workers with no fixed or habitual place of work), employers are going to have to quickly assess whether and, if so, how the decision affects their particular arrangements for rotas and time off, and whether they will need more workers to sign opt outs from the Working Time Directive’s 48-hour working week, in order to ensure they remain within the law and minimise the risk of tribunal claims resulting from the decision.

Employers should also note that the decision concerns working time rather than pay so that, subject to them complying with the laws relating to national minimum wage, employers are still free to decide what workers should be paid for time spent travelling between home and the first and last appointment of the day. Employers should carefully review contracts, policies and pay rates to assess whether changes need to be made and, if so, how.

Amy Cunningham is a Senior Associate at SG Employment Law, which provides legal and HR services to both companies and individuals. She can be contacted through email at amycunningham@sgemploymentlaw.com.

Last reviewed 19 November 2015