Time Spent by Mobile Workers Travelling Between Home and First and Last Appointments is Working Time
The European Court of Justice (ECJ) has ruled that time spent by mobile workers travelling between home and their first and last appointments counts as working time.
The European Court of Justice (ECJ) has ruled that time spent by mobile workers travelling between home and their first and last appointments counts as working time for the purposes of the Working Time Directive. The decision has serious implications for employers of mobile workers who have no fixed workplace and will impact on issues such as whether those workers are working more than 48 hour per week on average and whether they are being provided with the correct rest breaks.
Under the Working Time Directive, working time is any period during which a worker is working, at their employer’s disposal and carrying out their activities or duties. Time spent by a worker travelling to and from their workplace does not normally count as working time. This does not always fit the case of mobile workers who do not have a fixed place of work (for example, they may be assigned to work in a geographical territory). For those mobile workers there is often legal uncertainty about when their working day starts and ends.
In Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, the workers installed and maintained security systems for clients. They were each assigned a geographical area and had no office base. At the start of each day they travelled directly from their home to the first client designated by their employer. In some cases, this could be a distance of more than 100 kilometres. At the end of each day they travelled directly back home from their last client. Their task list for each day was sent electronically to their mobile phones by their employer a day in advance.
The employer did not count time spent travelling between home and the first and last appointments as working time. However, the employer did count time spent travelling between customers as working time and regarded the working day as starting when the worker arrived at the first appointment and ending when they left the premises of the last customer.
The Spanish Court asked the ECJ whether this was correct.
The ECJ agreed with the Advocate General that where workers have no fixed or habitual place of work, time spent travelling between home and their first and last appointments counts as working time.
The ECJ considered each of the elements of the definition of working time. It rejected the employer’s argument that the workers were only carrying out their activities when engaged in installing and maintaining security systems. Travel was a necessary part of providing those services to customers and so must be regarded as forming part of their activities. They were therefore carrying out their activities during travel time.
The workers were also at their employer’s disposal during this time as they were obliged to follow instructions and carry out their activities. They were obliged to follow the employer’s instructions in terms of which customers they visited, in what order and at what times. The employer could change the order of customers or cancel or add an appointment. They were not able to use their time freely or pursue their own interests. They were therefore at their employer’s disposal. The ECJ considered that the employer’s concern that workers could conduct personal business during this time could be addressed by putting in place appropriate monitoring procedures to prevent potential abuse.
Finally, the workers were also working. As they were carrying out their activities, they must also be regarded as working. Travelling is an integral part of the work of a mobile worker and so their place of work cannot be limited to customers’ premises.
The ECJ’s ruling has significant implications for employers who employ mobile workers. The working day for mobile workers now commences when they leave home and ends when they arrive back home. This will impact on issues such as whether the weekly working time limit is being exceeded and whether workers are being provided with the correct rest breaks.
48 hour week
Employers need to reassess whether the 48 hour average weekly working time limit is being exceeded as a result of having to include travel time in the calculation. If it is, they will need to try to obtain the workers’ agreement to opt out of the 48 hour week, assuming they have not already done so. If workers do not agree to opt out, they cannot be required to work more than 48 hours per week on average. It is also unlawful to victimise a worker who does not agree to opt out.
Employers have to provide a worker with a 20 minute uninterrupted rest break if their working time exceeds six hours. Workers who were not previously entitled to a rest break may now qualify as their working day will be longer.
Workers are entitled to 11 hours of uninterrupted rest each day and 24 hours' per week (or 48 hours' per fortnight, if the employer chooses). Employers will need to make sure that the inclusion of travel time as working time does not lead to them failing to provide workers with the correct rest periods.
Under the National Minimum Wage Regulations 2015, a worker is not normally considered to be working for National Minimum Wage (NMW) purposes when they are travelling between home and a place of work or between home and a place where an assignment is carried out. The ECJ’s decision does not therefore mean that employers will have to pay a worker for travelling time in order to comply with NMW obligations. However contractual pay provisions may be relevant here and employers should check what they say about the entitlement to be paid.
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