Kate Booth, Partner at Chamber Patron Eaton Smith, looks into a recent case to explore this question.
A European Court of Justice (ECJ) case has been reported in the press to much concern from employers. This is:Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another.
The reason for the concern is that the ECJ found that time spent travelling from home to work could amount to working time for the purposes of working time rules – like our own Working Time Regulations which set out what breaks a worker should receive.
In fact, the circumstances of this case are quite unusual and will not apply to all employers.
The two defendant companies were security installation and maintenance companies who employed technicians to cover particular geographical areas. At first, the technicians had a “base” or place of work in their local office. They would go to the office in the morning to collect their vehicle and jobs list and return at the end of their working day to return the vehicle. Their working time was classed as the time from when they left their local office in the morning to go to their first job to when they returned to the office following their last job. Please note that this practice accords with the practice of many employers in England and Wales and was not subject to criticism by the ECJ.
The issue arose when the defendant companies closed the local offices and changed the employees’ place of work to Madrid. The employees kept their vehicles at home and received their jobs list electronically. Instead of travelling from home to the office and then out to their first job, they travelled directly from home to their first job. Sometimes their first job could be more than 100km away from home. Their working time was classed as when they arrived at their first job.
You can see on the facts how this created unfairness. Either the employees would have been financially worse off under the new arrangement, as they were not paid for travelling potentially long distances to their first job, or the employees had to set off earlier in the morning to get to their first job meaning that they lost out on important breaks.
The ECJ held that this was an unfair practice and breached working time rules. The decision of the ECJ was that time spent travelling to the first job of the day and home from the last job of the day should be counted as working time. This was because the workers were deemed to be carrying out their duties when travelling to a first job because they had no fixed place or office to go to beforehand, because they were legally obliged to obey the instructions given to travel to a particular place at a particular time and could not use their time freely or pursue their own interests during this travel time, and because as they had no fixed place of work the journey itself amounted to work.
Commentators have also argued since the publication of the case that it may impact on wage costs as workers would potentially be entitled to claim the National Minimum Wage (or even their normal hourly rate if higher) for travelling time.
What can you do? Review your practices. If you have employees who work out in the field, consider whether they have a “base” that you can measure their travel time from. If they tend to come in to a base at the start and end of their working day then the ECJ decision is unlikely to impact on you. If they don’t, consider whether it is practical to require them to do so.
If you would like to discuss this further then please contact Kate on firstname.lastname@example.org or 01484 821309.