Does ‘Working Time’ include time spent travelling to and from home?
In a recent case referred to the European Court of Justice this question has been considered, and whilst the Court’s decision has not yet been published the Advocate General has given his view on this matter.
Under European Law ‘Working Time’ is defined as any period during which the worker is
2) at the employer’s disposal and
3) is carrying out his activity or duties, in accordance with national laws and/or practice.
This is set out in Article Two of the Working Time Directive.
In Great Britain the applicable law that governs working time and implements the Working Time Directive is the Working Time Regulations.
A question about the definition of ‘working time’ arose in a case in the Spanish Courts in which security system installers and maintenance engineers (known as ‘Technicians’) were required to travel from home to customers premises.
The Employers in this case were Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicos Settlement Agreement. They employed a number of Technicians who were originally assigned to areas or provinces throughout Spain, but following changes to the business and closure of their provincial branches, had all been assigned to the Employer’s Madrid office.
Prior to the closure and centralisation Technicians would travel from home to their local office where they would collect their company vehicle and start work for the day. At the end of the day they would return the vehicle and this would signal the end of their working day.
Most recently Technicians kept the company vehicle at their home address and instead of going to an office would go straight to their first customer job of the day. They received details of their assignments for the day by mobile phone.
The distance and time it takes to get from home to the first job of the day varies from day to day depending upon business requirements. On some occasions the distance could be up to 100km from the Technician’s home.
An issue arose as the Employer did not include travel time to the first job and home from the last job, as ‘working time’; instead they called it ‘rest time’. The Technicians made a complaint, via their Union, to the Spanish Court on the basis that the Employer was breaching the rules on ‘working time’.
The Spanish Court referred the issue to the European Court of Justice to determine whether working time included travel time for workers who have no fixed place of work.
Whilst the European Court have not yet published their decision on this point the Advocate General (AG) has, and in most cases the Court will follow the AG’s decision.
Looking at the three criteria from the Working Time Directive which must be satisfied to meet the definition of “working time”; working; at the disposal of the employer; carrying out their activity or duties; the AG decided that for employees with no ‘work base’ who are required to travel, travel time is ‘working time’.
Just because the employee is not physically at one place does not prevent it from being ‘working time’. During this time the employees have limited control over what they can be doing, and are at the will of their employer in terms of where and when the must travel.
Points to note
Firstly it should be noted that this is only the opinion of the Advocate General and is therefore not binding. It is however usual for the European Court to follow the AG decision so watch this space.
What constitutes ‘working time’ is relevant for the purposes of establishing working time for the average maximum working week, night working, rest periods and rest breaks which are all governed by the Working Time regulations. It is therefore important, if you have staff who travel for work, to keep an eye on the decision, which although not binding will have persuasive value and is likely to effect the application of law in the British Employment Tribunals.
What action do you need to take?
If your employees have a fixed work place or are required to attend a fixed base before starting their working day then you do not need to do anything.
If your staff travel from home to customers or jobs on your behalf then you should;
1) Consider how you calculate working time currently;
2) Check what your contracts and procedures say about this time in the working day;
3) Subscribe to my newsletter (below) for updates on the European Court decision and any decisions in the domestic courts or Tribunals;
4) If you want to make changes or have concerns about the effect on your business contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email firstname.lastname@example.org
Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another