Is travel to work, “work”?

Yes, for mobile workers that do not have any fixed or usual place of work.

For these workers, according to the Court of Justice of the European Union, the time taken to travel from home to the first client, and from the last client to home, should be included in the calculation of "working time". This is according to a judgment just handed down by the European Court in the Spanish case of Federación de Servicios Privados del Sindicato Comisiones Obreras –v- Tyco Integrated Security SL and another.

Whilst the case originates from Spain it concerns the Working Time Directive and impacts directly on a broad range of UK employers who engage mobile workers. There has been much hype about the case, with hares being set running about the financial implications for employers. What has been less reported is that the Court did not say that the time spent travelling to work (and back home) should be paid. The case is about working time, not pay.  Indeed the Court expressly stated that the employer was “free to determine the remuneration for the time spent travelling between home and customers”.

There are, however, important "working time" lessons that employers with mobile employees without an office base should take care to heed.

What is the case all about?

This case focuses directly on the question of what constitutes "working time" for the purposes of the Working Time Directive.

Article 2 of the Directive specifically defines "working time" as "any period during which a worker is working, at the employer's disposal and carrying out his activity or duties". A "rest period" is simply defined as any period which is not working time. The Directive provides no enlightenment as to whether travel to and from work constitutes working time. To date employers have been confidently following guidance that suggests that it does not.

Tyco – the facts

Tyco, the employers in this case (who are part of the same group of companies), employ technicians who use company vehicles to attend, install and maintain security systems at their customers premises. Initially Tyco had regional offices from which the technicians started their daily shifts. In 2011, Tyco closed its regional offices. Since then, the technicians have travelled from their homes to the sites where they carry out the installation or maintenance. At the end of the day they travel back home. They each have a mobile telephone which has an app that lists their appointments for the following day. In other words, they do not attend at any company premises as part of their usual work.

Prior to the closure of the regional offices, Tyco calculated the technicians' working time as starting from the time they left the regional office to go to their first appointment. After the closure of the offices, this changed. Tyco instead calculated the technicians' working time as starting from the time that the technician arrived at their first appointment and ending at the time they left their last assignment. Tyco regarded this travel time from and to home as a "rest period", rather than "working time".

The technicians complained to the Spanish Court that Tyco were in breach of the Working Time Directive by not counting the time that they travelled from their homes to their first appointment, and the time that they travelled home from their last appointment, as working time. The Spanish court referred the question to the European Court.

The ECJ Judgment

The Court has ruled that the journeys from and to home by mobile workers should be regarded as working time. The logic of the Advocate General and the Court, as applied to the component parts of the definition of working time under Article 2, is as follows:

• being at the employer's disposal – the Court noted that the technicians follow the order of the appointments as instructed by Tyco. They were legally obligated to obey Tyco's instructions to travel to their appointments. Whilst they could dictate which route they took, the workers were not able to pursue their own interests during that travel time and, as such, were at Tyco's disposal.
   
• carrying out duties or activities – the Court found that, as travel is inherent in the performance of their jobs, it must be said to form part of their activities or duties.  The Court noted that prior to the closure of the regional offices Tyco had regarded the first and last journeys from those offices as counting towards working time. It said that Tyco itself had therefore regarded this time as being part of their duties. The only variable that had since changed was the starting point of the journeys, rather than the nature of them.
   
• being at work – the Court said that travel is an integral part of an itinerant worker's work. If they do not have a fixed place of work, and are carrying out their duties to and from their appointments, they must be regarded as working on that journey. Where they start and finish that journey is irrelevant.

What are the implications of the case?

All in all the decision will not be welcome news for employers who, to date, will have assumed that they were already complying with their legal obligations on working time.

For employers with mobile workers who do not have an office base, the case may have significant ramifications.

48-hour working week: 

Employers should assess whether there is a risk that they may be falling foul of the 48-hour maximum working week under the Working Time Regulations (Northern Ireland) 1998 as a consequence of this case. If there is a risk of this, employers should ask their workers to opt out of the 48-hour working week provisions, if that has not already been done.

Rest breaks: 

Employers must also make sure that these workers are getting the requisite 20 minutes rest after 6 hours and 11 hours rest between arriving back home in the evening and starting out the next morning. Unlike the 48-hour week provision, it is not possible to opt out of rest breaks.

Minimum wage: 

The European Court did not deal with the question of minimum wage given that the National Minimum Wage Regulations ("NMW") only have effect in the UK. However, under the NMW, hours when a worker is travelling for the purpose of carrying out assignments at different locations "between which the worker is obliged to travel and which are not places occupied by the employer" are regarded as "worked". Given that the European Court found in Tyco that travel forms part of those itinerant workers' work, there is a risk this could prompt claims about the interpretation of the NMW for mobile workforces without a fixed base of work.

Practicalities:

• Employers may also wish to review the itineraries that they issue to their peripatetic employees. Can savings be made by more careful scheduling of routes, for example with start-off and finish appointments closer to the workers' homes? If the workers arrange their own daily appointment schedule, consider whether steps can be taken to require them to do so using the most efficient route.
   
• Checks should be carried out on the contractual position regarding payment for travel time for employees covered by this judgment.
   
• A prudent employer may also wish to put in place some monitoring capability to avoid the potential for workers to abuse this new entitlement by elongating their start and end journeys. It would also be sensible to review the company disciplinary policy and ensure that workers are aware that an abuse of this nature will be dealt with swiftly and effectively.

For further information please contact a member of our Employment team.

Date published: 16 September 2015