The European Court of Justice has ruled that travel between an employee’s home and the first and last job of the day at a client’s location constitutes working time for staff without a fixed or habitual place of work.
The court considered this time spent travelling as working time, with the employee at the employer’s disposal during the journey.
The ruling confirms 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.
Security systems firm Tyco closed its regional offices in Spain in 2011, reassigning all staff to its central office in Madrid. Technicians at the organisation install and maintain security equipment at clients’ homes, industrial and commercial premises within the regions to which they are assigned.
Employees are provided with a company vehicle and mobile phone to carry out their duties, which can involve driving distances of more than 100km.
Prior to closing its regional offices, Tyco considered the daily working time of its staff to begin from the point of arrival at the office to pick up the vehicles used for appointments, and ending when the vehicles were returned to the site in the evening. Following the closures, the time employees spent travelling between their home and the client’s premises was deemed to be a rest period rather than working time.
The European Court of Justice took the view that workers in this situation are fulfilling their job duties for the duration of these journeys, and that to consider them as rest periods rather than working time would contravene the health and safety objectives of the Working Time Directive, which necessitates the guarantee of minimum rest periods for workers.
The Court also highlighted the fact that employees begin and finish their work journeys at home is a result of Tyco’s decision to close its regional offices, rather than a desire from the employees themselves.
Wider implications of the ruling
The ruling could have implications across the EU for employees that do not have a fixed or regular workplace and travel to customer locations to fulfil their job duties, as well as for the organisations that employ such staff.
It could also affect compliance with the Working Time Directive, which states that employees cannot work more than 48 hours a week on average, although British business can choose to opt out of this limit.
Catrina Smith, partner at legal practice Norton Rose Fulbright, said: “This means employers which have mobile workers with no fixed or habitual place of work should check whether the time spent travelling at the beginning and end of the day amounts to working time.
“If so, they will need to check that the employees are having sufficient rest periods and not breaching the maximum weekly working hours. They will also need to consider whether they wish to make any changes to remuneration structures to prevent increases in costs.
“For well-paid employees there may be some flexibility, although issues may arise in agreeing any changes to the employee’s terms and conditions.
”For employees paid the national minimum wage to whom this may apply, employers will have less flexibility to change remuneration levels.”
Suzanne Horne, partner and employment lawyer at law firm Paul Hastings, added: “The decision has immediate application and employers have no choice but to comply. This will create a serious burden for [organisations] at a time when there is already pressure to foot the increasing salary bill resulting from case law on holiday pay, increased national minimum wage and next year’s new national living wage.
“Aside from the salary costs, there are additional questions about how this impacts an employee’s entitlement to daily rest breaks and the 48 hour maximum working week, as well as other employer liabilities, such as travel expenses.”
