Veale Wasborough Vizards
29 JUN 2015
Potentially bad news for employers - time spent travelling between home and work could count towards 'working time'
Associate, Veale Wasbrough Vizards
The Advocate General of the European Court of Justice (ECJ) has given his opinion that, in the case of mobile workers without a fixed base providing services directly at customers' premises, time spent by these workers travelling between home and work qualifies as 'working time' under the EU Working Time Directive (Directive).
The case - Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor - related to workers in Spain. Tyco employed 75 workers to fit and repair security equipment at the premises of their customers across Spain. Each worker was responsible for a particular region of the country. Even though the workers were assigned to Tyco's Madrid office, they did not have a habitual place of work. Under Tyco's arrangements, each of the workers were assigned a company car that they used to travel from their homes to their customers to perform their instructions. Having completed all of their client visits, the technicians would then return home at the end of the day. Tyco controlled the assignments that the technicians undertook by creating a task list and then sending that itinerary to the technicians via their mobile phones.
Tyco's policy classified 'working time' as excluding the time a worker spent travelling from their home to their first customer's premises and the time spent returning home from the last customer's premises. The workers tried to challenge this classification, arguing it was in contradiction of the Directive, and that their initial and final trips of the day should be counted as working time. The Spanish courts referred the case to the ECJ for a decision.
Advocate General (AG) Bot of the ECJ has now produced an opinion stating that the time spent by Tyco's workers travelling from home to their first customer's premises and then the return journey home at the end of the day should be counted as 'working time' for the purposes of the Directive. AG Bot noted that the essential criteria that needed to be met in order that the time be counted as 'working time' were:
- Was the worker at the workplace? (The AG said that travelling to and from customer's premises was an inherent part of the job and as such this criterion was satisfied)
- Was the worker at the disposal of the employer? (The AG said that he deemed the workers to be at Tyco's disposal during the travelling time because they could control the activities undertaken by the worker during the journey, e.g. if a customer cancelled or there was a change to the itinerary.)
- Was the worker carrying out the employer's activity? (The AG said that the workers were travelling in order to provide services for Tyco's benefit)
As such, the AG felt that the travelling time, in these circumstances had met all the required criteria for 'working time'.
When considering Tyco's fear that this time could be subject to abuse and used for personal business, the AG felt that this risk was not strong enough to prevent travelling time to be included as working time and that it should be the employer's duty to ensure that workers do not undertake personal business during working time.
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The nature of an AG opinion means that it is not binding upon the ECJ or the Courts here in the UK. The ECJ will make a final determination of the workers claims. However, AG's opinions are usually followed by the ECJ.
Should the ECJ follow this opinion in their judgement then employers will need to be aware that those workers who do not have a fixed working premises but travel to visit customers may be able to argue that time spent travelling at the beginning and end of the day should count towards their working time. This will have an impact on the worker's right to a daily rest period and their maximum working hours under the Working Time Regulations, the UK legislation that has enacted the Directive.
In order to minimise the amount of working time undertaken by a worker in these circumstances, employers may need to consider sending mobile employees to locations near their homes and potentially consider providing for a provision in any new contract obliging employees to live within a certain area in order to reduce travel time. Employers should also consider the pay implications that any judgment may have for genuine 'mobile' employees, in particular those paid hourly, and the knock on implications that it could have for paying staff the National Minimum Wage.
We will provide a further update once the ECJ issue a final decision.
Employers will be relieved to hear that this opinion does not apply to 'normal' workers travelling between home and a fixed place of work.