Does the time that workers (who are not assigned to a fixed or habitual place of work) spend travelling from home to their first customer, and from the last customer back to their homes, count as ‘working time’ for the purposes of the Working Time Directive? According to the Court of Justice of the European Union in the case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco, it does count as working time.
According to the ECJ, there are three aspects to ‘working time’: being (1) at the workplace; (2) at the disposal of the employer; and (3) engaged in work duties. For ‘peripatetic’ workers, travelling is an integral part of their job because it is all part of providing services to their customers.
For peripatetic workers, aspect (1) was fulfilled because travelling is an integral part of the job, such that the workplace cannot only be considered as performing work at clients’ premises; aspect (2) was fulfilled because routes and destinations are determined by the employer who could at any point modify the instruction; and aspect (3) was fulfilled because, again, travelling is integral to the peripatetic work.
This means that it should be regarded as part of their working activities, and hence their working hours. Working time’ and ‘rest time’ are mutually exclusive concepts and there can be no ‘grey periods’.
The workers in this case are Spanish security equipment engineers looking after particular parts of Spain. They have company vehicles and start and finish most days from home. They are in contact with their employer by mobile phone, and are not generally required to travel to an office or a central location, save for the weekly purpose of collecting tools and materials. Their employer counted their working hours from the time of arriving at their first customer to the time they left their last customer, and this is what their workers have challenged through the court system.
Tyco argued that their travelling time was a “rest period” rather than working time because they were not carrying out any installations or maintenance during those periods. The CJEU disagreed, stating that such an argument “would distort that concept and jeopardise the objective of protecting the safety and health of workers” and that it was working time.
Why does this matter to employers in the UK?
The answer is that our courts will have to apply the judgment to people like sales representatives, maintenance technicians, domiciliary care workers, and, arguably to occasional drivers like Managers or people going on training courses. Travel to work is not working time unless it is actually part of the work activity, so it will not impact on everyone. It is unlikely that a travelling worker’s travel will count where, at the start and end of the day, they visit a central premises to pick up a vehicle or supplies.
It could be a potentially very difficult judgment for employers, many of whom adopt the ‘Spanish approach’ and discount some, or all, travel to and from customers, at the start and end of the working day. It will impact on employers in at least three ways:
- Employers will have to ensure that they comply with the Working Time Regulations, so this may well increase working hours within, or above the ’48 hour rule’.
- Employees, who are on minimum wage or just above, will find it easier to claim that their actual average hourly rate is below the Minimum Wage, and therefore claim a pay rise, to ensure they are paid at least the minimum wage for the hours that they are working.
- Some employees will take the view that if they are ‘working’ extra hours that they should be paid extra for these hours.
It is easy to say that this judgment only defines working time, but less easy to frame a response to the claim for extra pay suggested above. Much will depend on affordability, but few employers would find it easy to pass on, or absorb, such an additional cost. The good news is that, the ECJ rejected the UK Government’s argument that this conclusion would lead to an inevitable increase in costs for the employer. The ECJ pointed out that the employer remained free to determine the remuneration for travelling time and that, save in the special case of paid annual leave, the Directive does not apply to the remuneration of workers. Thus, the method of remuneration would be left to the relevant provisions of national law. In other words, it should not impact on pay. We would advise:
- Do not panic.
- Consider how to change your recording of working time, and use of opt-outs.
- Consider fitting trackers to vehicles, if you think the judgment will encourage abuse.
- Review whether low paid staff might have a strong basis for claiming they are being paid less than the minimum wage.
- Prepare answers for employees who tell you this decision means you must pay them more money.
We would generally not have recommended that travel to first job did not count for working time purposes in any event. Our clients who employ people in this way have a variety of practices in relation to payment; some of whom pay for the time they leave home and others from the time of their first job. Others do not pay them for the allocated minutes, being the equivalent of what would otherwise have been their normal journey time from office/depot to work, and the same logic at the end of the day. This can be similar to any formula agreed with the HMRC regarding an initial amount of mileage cannot be claimed in lieu of home to work. We would be very concerned if this were more than one hour each way, other than if someone was required to work away on an occasional basis. We are very aware that our clients all have different needs and histories, and that whatever is paid has to be affordable!
If this case is worrying you despite what we have said above, please do not hesitate to contact our Consultants who would be pleased to assist.
