Travel between Worker’s Home and First and Last Appointments is Working Time
Time spent by mobile workers travelling from home to their first customer, and from their last customer back home, counts as working time according to the ECJ’s Advocate General.
Working time is any period during which a worker is at their workplace, at the employer’s disposal and carrying out their activities or duties. Time spent by a worker travelling to and from their workplace is not normally counted as working time. This does not always fit the case of mobile workers who do not have fixed physical premises they can call their workplace (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, taking into account what their “workplace” is and when they are deemed to be travelling to and from it.
In Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, the workers installed and maintained security systems for clients. They had no office base. At the start of each day they travelled directly from their home to their first client. 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 BlackBerrys a day in advance.
The employer did not count time spent travelling between home and the first and last appointments as working time. It regarded this as rest time. However, the employer did count time spent travelling between customers as working 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 European Court of Justice whether this was correct. The Advocate General has given his view 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 Advocate General 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 must therefore be regarded as forming part of their activities. The workers were at their employer’s disposal during this time as they were obliged to follow its instructions in terms of which customers they visited and in what order. They were also deemed to be at their workplace. As travelling was an integral part of their work, their place of work was not limited to customers’ premises.
The Advocate General could see no distinction between travel between jobs, which the employer agreed was working time, and travel to and from the first and last jobs. In addition, time either has to be “working time” or “rest time”; there is nothing in between. As rest time must not involve obligations towards the employer, travelling time had to be working time.
If the ECJ agrees with the Advocate General’s opinion, the working day for workers with no fixed workplace will commence when they leave home and end when they arrive back home. This will impact on issues such as whether workers are working more than 48 hour per week on average and whether they are being provided with the correct rest breaks of 11 hours of uninterrupted rest each day and 24 hours' per week (or 48 hours' per fortnight, if the employer chooses).
The Advocate General noted the employer’s concern that this interpretation of working time could allow workers to take advantage of the journeys at the beginning and end of the day to carry out their personal business. He considered that these fears were not sufficient to alter the legal nature of the time spent on these journeys and suggested employers should put in place the necessary monitoring procedures to avoid abuse.
The ECJ is not obliged to agree with the Advocate General but normally it does. The ECJ’s judgment can be expected later this year.
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