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Travelling To Work Is “Working Time”

Travelling To Work Is “Working Time”

Is time spent travelling between home and the first and last assignment of the day by employees classified as “working time”? The European Court of Justice (ECJ) last week ruled that in relation to employees who have no fixed or habitual place of work, the answer is yes.  

What Is “Working Time”?

“Working time” is defined in the European Union’s Working Time Directive (WTD) as “any period during which a worker is working, at the employer’s disposal and carrying out his/her activity or duties, in accordance with national laws and/or practice.” This has been implemented in Great Britain via the Working Time Regulations 1998 (WTR).  Neither the WTD nor the WTR make reference to travel to and from a place of work and the issue had not previously been questioned.

The Facts of the Case

The case was referred to the ECJ from Spain.  It concerned two Spanish companies which install and maintain security equipment throughout Spain.  The technicians employed by the companies had no fixed place of work and were instead assigned to a geographical area, where they would attend customers’ premises to carry out their duties.  The workers believed that the time spent travelling from their homes to the place of their first assignment, and from the place of their last assignment back home, should amount to working time.  The employers argued the contrary.  The Spanish courts set the case aside and asked the ECJ to clarify the definition of “working time”.

The ECJ looked at three points which must be satisfied for “time” to amount to “working time.” Workers must be:

  1. at the workplace;
  2. at the disposal of the employer; and
  3. carrying out their activity or duties.

The ECJ decided that in this case, the journeys were a necessity in order for the workers to provide their services.  When a worker uses transport to visit a customer chosen by their employer, they must then be considered “at work”.

Secondly, the ECJ took the view that the workers were at the employer’s disposal during the journeys.  The workers acted on the instruction of their employer, who could change the destinations of the assignments or cancel appointments entirely.  This point was criticised by the UK Government who expressed concern that workers could use this time to conduct personal business.  The ECJ rejected this view, saying that it would be for employers to make sure that necessary measures were in force to monitor this.
The ECJ held that the third point was also satisfied.  Journeys to and from assignments are a necessary means of carrying out the workers’ activity or duties, and therefore workers carry out their activity or duties over the whole duration of the journeys.  

Finally, the ECJ held that if the time was not to be defined as “working time” and was instead “rest time” (which is anything that isn’t working time), then it would be contrary to protecting the health and safety of workers, which they stressed to be essential. The UK Government challenged this argument, stating that it would lead to an inevitable increase in costs for employers but the ECJ was adamant that health and safety should come before any cost implications, and pointed out that employers remain free to determine the remuneration for the time spent travelling between home and customers.

What This Could Mean For Employers

As mobile working becomes an increasingly common approach in a number of sectors, this case has a number of implications for UK employers. These include:

Working Time

Under the WTR a worker can’t work for more than 48 hours per week on average (averaged over 17 weeks) unless the worker chooses to opt out of the 48 hour week.  Employers will have to assess where they have workers who do not have a fixed place of work (e.g. care workers, electricians or gas fitters) and whether in relation to these workers, they are meeting the requirements of the WTR.  Where they don’t, employers should take action.  Advice should be sought before changing any terms of employment.

Rest Time

The WTR generally allows workers a daily rest period of 11 hours uninterrupted rest, a weekly rest period of 24 hours uninterrupted rest and a rest break of 20 minutes away from their workstation, when working more than 6 hours.  Employers are required to ensure that workers can take these rest breaks, however are under no obligation to force workers to take them.  Following the decision, employers must ensure that the relevant WTR rest periods are available.

Pay

The decision by the ECJ has no direct impact on pay.  It was reinforced that it is for individual member states to decide on pay for travel time.  In the UK, this is covered by the National Minimum Wage Regulations 2015 (NMWR).  There is an express exemption contained within the NMWR which states that travel between an employee’s home and “place where an assignment is carried out” is not counted as “hours of work”.  Unless the contract of employment (written or implied) or any collective agreement provides that the employer is required to pay travel time, then there is no obligation to do so. 

There are no cases as yet which deal with the time spent travelling to and from assignments or meetings where employees have a habitual place of work.  This decision only relates to employees who have no habitual place of work.  Further challenges in this area may be expected.

If you have any questions about any of the points above, or wish to speak to a member of the team to discuss this further, please get it in touch.

Ronald Mackay
Partner

LChalmers