Is your employee ‘working’ when they’re travelling to work?

21 September 2015

Yes, if they have no normal place of work and are travelling from home to their first customer of the day, and from their last customer of the day to home.

This decision by the European Court of Justice (ECJ) hit the news headlines recently. The case involved Spanish workers whose job was to install and maintain security equipment at customer premises. When they were first employed, they would arrive at the regional office to collect a company vehicle and their worklist for the day, at which time their working hours would commence.

Following the closure of the regional offices, the workers became mobile staff with no normal place of work. They were assigned a company vehicle and travelled from home to customer premises each day to carry out their work. They were sent a list of their daily tasks the night before to their company mobile phone.

After becoming mobile, their employer calculated the workers’ working hours from the time they arrived at their first customer until they left the premises of their last customer. They did not include the time spent first thing in the morning travelling to their first customer or the time spent travelling home at the end of the day.

Whether or not travel time in these circumstances is also working time will determine whether or not an employer is compliant with the Working Time Directive, which governs restrictions on average weekly working hours and minimum rest breaks.

To be working time, a worker must be working, at the employer’s disposal and carrying out their activity or duties, in accordance with national laws and/or practice.

The ECJ found that:

  1. The workers were ‘working’ because, in the absence of a fixed place of work, they were carrying out their duties during their journey to or from a customer.
  2. The workers were ‘at the employer’s disposal’ because during their travel time they were legally required obliged to obey the employer’s instructions.
  3. The workers were ‘carrying out their activity or duties’ because the journey from home to customer premises was a necessary means of providing the workers’ technical services to the employer’s customers.

It was noted that prior to the closure of the regional offices, the workers’ journey to their first customer of the day was considered working time. The nature of this journey had not changed, only the departure point.

The impact of this decision

Working time is measured to ensure that workers are given the opportunity to take daily and weekly rest breaks, and do not work more than 48 hours per week (unless they opt out). Employers with mobile workers with no fixed place of work should review the way in which they calculate a worker’s daily working hours to ensure that they are not breaching the Working Time Regulations and, where relevant, have the necessary consent to ‘opt out’ documented and filed.

Case cited: Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (c-266/14)

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