Rhiannon Jenkins: Should commuting count as working time?

Rhiannon Jenkins

Time spent commuting is not usually ‘working time’. Employers do not generally have any control over an employee’s activities until they reach the workplace, and have no say in where the employee lives or how long they spend commuting.

However, the European Court of Justice’s (ECJ) significant decision in Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL back in 2015 held that, for employees who do not have a fixed place of work, the time spent travelling between home and their first and last appointments is working time. As a practical solution to this ruling, employers who have control over the order in which assignments are carried out could ensure employees visit customers closest to home at the beginning or end of their working day.

In November 2017, the European Free Trade Association Court, which is equivalent to the ECJ for Iceland, Liechtenstein and Norway, further clarified Tyco in Torbjørn Selstad Thue v the Norwegian Government. The case involved a policeman whose habitual place of residence was a rural police station but, when carrying out assignments as member of a response unit, could be elsewhere in the police district. The Court held that travel time to a place of work which is not an employee’s usual base will be working time if the employer requires them to travel to that location.

The Court found that, in accordance with Tyco, travel is a working task when it is ordered by employers. Secondly, the Court clarified that the intensity of the work performed by the employee and their output are not relevant criteria in considering working time, but the employee must solely be at the disposal of the employer during that time. Thirdly, it is immaterial how frequently the employer specifies a place of attendance other than the fixed one, unless they transfer the employee’s place of work.

Although the Court’s decision is not binding on the ECJ, it may well consider it in future cases.

Rhiannon Jenkins is an associate in the employment, pensions, benefits and immigration team at Blake Morgan.