Travelling to work "is working time" for employees without a fixed place of work

The European Court of Justice has ruled that travel to and from work for certain types of employees could be counted as part of the working day.

This ruling has received plenty of press coverage and generated confusion amongst companies and their employees. The original case concerns a Spanish company’s technicians, who had to travel to appointments across Spain. During the case in Spain, the employer argued that the first journey of the day (from home to the first appointment) or the last journey of the day (from the last appointment to home) do not count as working time, but as resting time. However, the European Court has confirmed that the time spent travelling to and from first and last appointments by workers without a fixed or habitual place of work should be regarded as working time within the meaning of the Working Time Directive 2003/88/CE. The Working Time Directive clearly establishes that working time is the time in which the employee is working, at the employer’s disposal and carrying out their activities and duties.

This decision is based on the fact that the workers are at the employer’s disposal for the time of the journeys; they act under their employer’s instruction and cannot use that time freely for their own interests, so it cannot be counted as rest time. Excluding those journeys from working time would be contrary to the objective of protecting the safety and health of workers as their right to a minimum rest period will be breached.

Still, to avoid any confusion generated by the press coverage, not every employee is affected by this ruling. In the analysed case, the fact that the employees begin and end the journeys at their homes stems directly from the decision of the company to close the regional offices and not from the determination of the workers themselves. The European Court said that this decision affects the staff without a fixed or regular workplace that generally travel from home to and from a variety of locations, and that the ruling does not impact on those with fixed workplaces.