Those employing mobile workers will be interested in the decision in the Spanish case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (c-266/14), which has now been handed down by the European Court of Justice. The ECJ has followed the opinion of the Advocate General which was issued earlier this year holding that the time spent by workers, who do not have a fixed or habitual place of work, on travelling each day between their homes and the premises of the first and last customers as directed by their employer is “working time” for the purposes of the Working Time Directive.
What was the Tyco case about?
Tyco employed technicians to install and maintain security systems. Each technician was assigned to a particular province in Spain until the company decided to close all the provincial offices and assign all of the technicians to a central office in Madrid. Each technician was provided with a vehicle which they used to travel from their homes to their first assignment of the day and then back home again in the evening. They received instructions from the company about their task list for the following day the night before via an app on their phone and often they had to travel over 100km to get to their assignments. The company did not treat the first journey of the day from home to the first assignment as working time and they did not treat the last journey of the day from the final assignment home as working time. The technicians complained that this breached the Working Time Directive rules and that this this travel time should be included in the calculation of working hours. The issue was referred to the ECJ by the Spanish courts.
The court found that the travel time from home to assignments and back was working time because the employees were at “their employer’s disposal” during these times. They couldn’t pursue their own interests during that time and although they could choose which route to take the employer dictated where the assignments were to take place, the order of assignments and could change the order of the customers or cancel them. Where an employee does not have a fixed place of employment and they are carrying out their duties when travelling to and from clients/customers they must be regarded as working on that journey. Of significance to the court was the fact that mobile workers with no fixed base did not have the ability to determine the distance between their homes and usual place of work.
What does it mean for employers in the UK?
This judgment will affect employers employing mobile workers who don’t have a fixed base. This could include sales people, carers who visit clients in their homes and those who carry out a lot of international travel. Most employers in the UK treat travel to and from work (or first and last assignments of the day) as travel outside of normal working hours and do not include it in the calculation of working time. This is in line with Government guidance which states that normal travel to and from work is not included in the calculation of working time. Those employing mobile workers may have to consider whether they reassign such workers to a base which they travel to first before commencing work; ensure that their first and last assignments are close to their homes to control working time; otherwise adjust working hours or ask mobile workers to opt out of the 48 hour working week to avoid breaching the Working Time Regulations.
Of course, if travel time to and from work has to be included in the calculation of working time for mobile workers it will inevitably have an impact on pay bills. Although it is open to employers to decide what level of pay will be made for such travel, employers are unlikely to distinguish between this time and other working time for the purposes of pay particularly where low paid employees receiving the minimum or living wage are involved.
On September 11, 2015