15 SEP 2015
When is travelling time working time? And when does working time not earn the minimum wage?
The European Court of Justice ('the ECJ') has now given judgment in Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security (Case C0266/14) consistent with the Advocate General's opinion, on which James Goudie QC blogged recently. For peripatetic or mobile workers (who do not have a fixed or habitual workplace) time spent travelling from home to the first appointment and from the last appointment back home counts as working time under EU law. The judgment has very significant implications for employers whose workforce includes, for example, home care staff, gas fitters, and sales teams.
'The improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations,' says the preamble to the Working Time Directive, as the ECJ pointed out. The judgment describes how Tyco formerly ran a network of regional officers, to which its security system technicians used to report each day to collect their vehicles and work schedules. Time travelling from home to the regional office was not treated as working time, but time travelling from the regional office to the first appointment, and back again from the last appointment to drop off their vehicles, was counted as working time. As a cost-saving measure, made possible by new technology, Tyco then abolished the regional offices, so that its workers now park their company vehicles at home, collect equipment, parts and materials just once a week, and receive their daily schedules and record their appointments through a mobile phone application. The court considered that the nature of the journeys to the first appointment and from the last appointment had not changed with the abolition of the regional offices, and so it was still working time. Clearly sympathetic to the workers, whose commutes were up to three hours long since closure of the regional offices, the Court held, 'Having lost the ability freely to determine the distance between their homes and the usual place of the start and finish of their working day, they cannot be required to bear the burden of their employer's choice to close those offices.' The Court readily accepted, however, that Tyco remained free to determine the rate of pay for the time spent travelling between home and customers, because - save for holiday pay issues - the Working Time Directive does not apply to the remuneration of workers.
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Is it safe for employers to assume that the ECJ's ruling affects only rest breaks and leave entitlements, and will create no new entitlements to pay? UK workers' entitlements to rest breaks, overnight rest and holidays are derived from European law. In contrast, the right to receive a minimum wage is based in domestic law, and regulations 27, 34 and 39 of the National Minimum Wage Regulations 2015 expressly exclude time spent travelling between the home and the workplace from the time which is eligible for the minimum wage. Thus, there is a superficial disjunct between the EU working time rights including the ECJ's judgment that travel to work counts as working time, and the domestic regime under the minimum wage rules in which travel between home and work does not generally count.
Will peripatetic workers now come under pressure from employers to opt out of the 48-hour week, so that they can, for example, be instructed to take compulsory rest breaks when they arrive at work and just before they set off for home? Whilst the UK's long-standing opt-out for the 48-hour maximum week prescribed by the Working Time Directive is officially continually under review at Brussels, the government stated only this month that retention of the opt-out is a top priority.
A more realistic view is that, depending on the particular contracts of employment, any collective agreements and whether the employer negotiates with a recognised trade union, the ECJ's judgment is peripatetic workers' commuting time is 'working time' will in practice entitle many UK employees to claim significant sums of additional pay, and, in some cases, those pay claims will be based on the minimum wage rules, or on higher rates of pay derived from collective agreements. Many employers will also have to reconsider route-planning between clients and to revise daily schedules to incorporate additional rest periods. Some employers may even find that, in order to maintain a profitable business, living close to the client area will have to become a job requirement for peripatetic workers. In a further complication, we are currently waiting to see the proposals for the new national living wage for workers aged over 25. These working time, national minimum wage and living wage riddles are only just beginning.