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By Kate Hindmarch

Sep 24th, 2015

Travelling Time Held to be "Working Time" for Some Workers

In a recent case[1], the European Court of Justice (“ECJ”) has held that when mobile workers with no fixed place of work spent time travelling to and from customers’ homes at the start and end of the day, their travelling time counted as working time.

Background

Tyco, a security system installation and maintenance company, employs technicians each of whom is assigned to a particular area in Spain.  In 2011, all of the company’s provincial offices closed and the employees were assigned to the central office in Madrid.

The technicians commenced using company vehicles to travel from their homes to the places where they carried out installation and maintenance jobs and would return home in the same vehicle at the end of each day. 

Tyco calculated the technicians’ working day as starting from arrival at the first assignment and ending when they left their last assignment.  This meant that their working time did not include the journeys made to and from their homes, which could exceed 100km.

The Case

The technicians lodged a complaint to the Spanish Court which was ultimately referred to the ECJ. They argued that their time spent travelling at the beginning and end of the day should constitute working time. Tyco argued that the travelling time could be considered a “rest period”.

The ECJ confirmed that the time spent on these journeys did constitute working time, based on the following grounds:

  1. The first and last journeys of the day were regarded as working time before the provincial offices closed. Following the office closures, the nature of the journeys hadn’t changed, only the departure points, therefore the workers were carrying out their duties during the time spent travelling to and from customers.
  2.  The technicians were not free to pursue their own interests during the journey, and so were at Tyco’s disposal. Whilst the workers could choose their routes, the company could change the order of the customers or cancel appointments at any time which would require the technicians to change their plans during those journeys. 
  3. As the technicians did not have a fixed place of work they must be regarded as working during the journeys to and from customers. The fact that the journeys would begin or end at their home was irrelevant.

Comment

Employers who have mobile workers with no fixed place of work will now need to take into account the fact that travelling time is considered working time when calculating what rest breaks the worker is entitled to, and should check whether its workers have opted out of the 48 hour working week.

The ECJ noted that whether or not this travelling time is paid or unpaid will need to be determined in accordance with national legislation. The general position under the National Minimum Wage Regulations 2015 is that time spent travelling between home and work will not count as timewhen the minimum wage is payable.However, employers should check the wording of their contracts of employment in relation to pay and hours of work, to assess whether there is a risk that workers could claim they are entitled to be paid for their travelling time.

In addition, employers who are concerned about employees abusing the journey time and conducting their own personal business, (an issue raised by the Spanish and UK governments during the course of the proceedings), may want to implement procedures to avoid this happening.

The decision only applies to mobile workers. However, the ECJ’s reasoning, that travel time is working time because the workers were not “free to pursue their own interests” could be used by workers in future to support a claim that time spent commuting to a fixed place of work should also count as working time. It remains to be seen whether this will be the subject of a future challenge.


[1] Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (c-266/14)

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