The European Court of Justice (ECJ) has ruled that the time workers without a fixed or habitual place of work spend travelling from home to their first appointment of the day and from their last appointment of the day to their home to be working time for the purposes of the Working Time Directive.
The ruling, announced in September, confirmed the opinion given by the Advocate General in June 2015 in the case of Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and others.
After Spanish security systems firm Tyco closed its regional offices in 2011 and assigned all staff to its central office in Madrid, technicians began to travel in a company vehicle from their home to appointments where they would carry out installation and maintenance at customer sites. The first and last journey of the day, which sometimes includes distances of more than 100km, was not counted as working time by the employer. Prior to this, Tyco calculated working time as commencing from the point employees would pick up their company vehicles from regional offices in the morning to go to appointments, until they returned them at the end of the day.
The ECJ held with the Advocate General’s opinion that these journeys constitute working time on the basis that the employees are at their employer’s disposal, fulfilling their duties, and should be considered to be working for the duration of the journeys within the meaning of the Working Time Directive.
The case has implications for employers and staff across the EU, including in the UK where the Working Time Directive is implemented through the Working Time Regulations. Employers will need to ensure that the inclusion of the time that workers without a fixed or habitual place of work spend travelling between their homes and their first and last appointment of the day remains compliant with the minimum rest periods required and the maximum working week, which is 48 hours normally averaged over a 17-week period.
Graham Richardson, legal director at law fimr Bond Dickinson, said: “Potentially, employees could be taken over the maximum working week if you add this [travel] time in, which would then put the employer in breach of the Working Time Regulations.
“There is scope for employers and employees to use an opt-out in terms of the maximum working week under the Working Time Regulations, so employers will need to check whether they have opt-outs in place, although opt-outs cannot be used in every circumstance.”
Adrian Martin, partner at Burges Salmon, added: “It is important to note that this is a judgement that affects working time for the purposes of the Working Time Regulations, which is primarily concerned with regulating how long people work and required rest breaks, as opposed to whether people are paid for it.
“It is a different question as to whether an individual would be obliged to be paid for the time they are doing [on these journeys] and that would be governed by the minimum wage regulations and the employee’s contract of employment.”
