13 November 2015

Travelling time is working time, rules ECJ

Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another – 1^st September 2015

This Spanish case involved technicians who, following the closure of regional offices, were assigned to a central office in Madrid and travelled to particular provinces in Spain installing and maintaining security systems. As a result of the decision to close the regional offices the technicians no longer attended an office at the start and end of each day but travelled directly to and from customers’ premises. Issues arose about what counted as working time.

The employer said that the first journey of the day (from home to the first appointment) and the last journey of the day (from the last a appointment to home) were not working time.

The technicians brought a claim against the employer saying that the time spent travelling at the beginning and end of the day by a worker constituted ‘working time’ and was not a ‘rest period’.

The European Court of Justice (ECJ) followed the Advocate General’s opinion and decided that workers who are not assigned a fixed place of work may count the time spent travelling from their home to their first appointment and the time spent travelling home from their last appointment as working time for the purposes of the Working Time Directive.

The Directive does not provide an intermediate category between ‘working time' and ‘rest’ and the court felt that the following three criteria for determining 'working time’ were met:

· Being at the workplace.

· Being at the disposal of the employer.

· Carrying out the activity or duties.

The time spent travelling to and from the workers' homes during the first and last journeys of the day was therefore working time rather than simply a rest break because the workers cannot use that time freely to pursue their own interests.

Implications for employers

· Although this decision relates to a Spanish case it concerns the EU Working Time Directive.

· The Working Time Regulations 1998 implement the same Directive in the UK.

· The Working Time Regulations 1998 do not deal with travel to and from places of work or between places of work.

· Following this case time spent travelling to and from home to certain jobs during the first and last journeys of the day may be working time, but only for certain workers with no habitual place of work.

· Non–statutory guidance (available on Gov.uk) suggests that normal travel to and from work and travelling outside normal working hours is not working time.

· Time spent travelling by workers who have to travel as part of their job, for example travelling sales representatives, should be considered as working time.

· Employers should note that just because time counts as working time for the purposes of assessing the number of hours worked, this does not necessarily mean that time should be paid.

· Those workers who have no fixed work place and a large territory may clock up more working time by their travelling to and from work.

· Employers may consider scheduling early and late appointments at sites close to workers’ homes.

· This decision may have an impact on employers that use peripatetic workers, such as the care sector and these employers should carefully review working practices to ensure overall working time and rest breaks are adequate and do not breach the working time legislation.

· More employers may use clauses to opt out of the Working Time Directive 48-hour working week as opt-outs are still permitted in the UK.