"Working time" can include time spent travelling to and from home for workers with no fixed place of work

The European Court of Justice (“ECJ”) has today handed down an important decision for businesses with peripatetic or “field” workers (those with no fixed workplace) holding that time spent travelling between a worker’s home and a customer’s premises is working time under the Working Time Directive (“WTD”). The press release is here and the text of the final judgement here. This decision does not impact on workers who travel to and from a fixed place of work, such as an office and which travel time does not count as “working time”. 

For those businesses with peripatetic workers, this decision raises questions as to whether existing working arrangements, such as resourcing and scheduling, now need to be changed bearing in mind the working time and rest requirements under the Working Time Regulations (“WTR”).  Also, should this time be paid? The UK national minimum wage (“NMW”) legislation appears on the face of it not to require minimum pay for travel time between home and a place of work.  However, a legal challenge that this time should be paid in some shape or form cannot be discounted – see Unison’s comment here.  In the meantime, businesses may well in any event now face pressure to change employment contract terms to pay for this travel time or incorporate it within the core hours a worker is paid for.

What did the ECJ say?

The case before the ECJ involved a group of peripatetic workers who had formerly worked out of a now closed regional office. They brought a claim in Spain arguing that their employer was in breach of the working time rules in calculating their working day as starting from arrival at their first assignment and ending when they left their last assignment, rather than from leaving their home to travel to the first assignment and arriving back at home from their last assignment. The Spanish court referred the matter to the ECJ.

The ECJ has held that for workers such as these, the time spent each day travelling between their homes and the premises of the first and last customers “designated by their employer” constitutes “working time” within the meaning of the WTD. The ECJ held that the three requirements for time to be “working time” were met:

• The workers were carrying out their activity or duties over the whole duration of these journeys. The journey was a “necessary means of providing those workers’ technical services” to the customers. To only take the time spent carrying out the activity of installing and maintaining the security systems would “distort” the concept of what was “working time” and “jeopardise the objective of protecting the safety and health of workers“. This was reinforced here by the fact that prior to the closure of the regional office, journeys from the regional office to the first customer and back to the regional office from the last customer were part of their activity or duties.
• The workers were at the employer’s disposal for the time of the journeys. They were “placed in a situation in which [the worker was] legally obliged to obey the instructions of his employer and carry out his activity for that employer”. Here the ECJ found that during the necessary travelling time the workers were not able to use their time freely and pursue their own interests. An employer might change the order of the customers or cancel or add an appointment during the journeys and the workers would act on those instructions.  The ECJ considered that concerns that time for such journeys could be abused could be dealt with by putting “in place the necessary monitoring procedures to avoid any potential abuse”, which, whilst an additional burden for the employer here, was an “inherent consequence of its decision to abolish the regional offices”.
• The workers were working during these journeys. The ECJ followed the Advocate General stating that given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the physical areas of their work on the premises of the employer’s customers. The ECJ again alluded to the employer’s decision to close its regional office commenting that “having lost the ability to freely determine the distance between their homes and the usual place of the start and finish of their working day, [the workers] cannot be required to bear the burden of their employer’s choice to close those offices.” Again this would be contrary to the objective of protecting the safety and health of workers required by the WTD.

Whilst the ECJ’s decision clearly focuses on the specific facts of the case before it and is arguably assisted by the ability to compare the arrangements prior to the closure of the regional office and after, it is clear that the three elements required for time to be “working time” under the WTD may be met in a variety of situations.

What does this mean for employers in the UK?

• Employers with peripatetic workers (i.e. those who have no fixed base) must now carefully review the working arrangements for these individuals bearing in mind that travelling time from home to the first customer of the day and to home from the last customer may well now be considered to be working time under the WTR. Inevitably there will be grey areas in determining whether an individual’s travel time is working time which employers will need to grapple with on a case by case basis. Questions to consider include:
  • What is the position where a worker is not operating to a schedule of customers and times designated by his employer?  The employer’s control in this respect appears to be a key element in the ECJ’s decision that the workers were not able to use the time freely to pursue their own interests and were at the employer’s disposal.  
  • Is the position different where a worker uses his or her own vehicle rather than a company one? Does it matter if the employer has no means of contacting the worker during the travel time? Whilst these facts were highlighted in the case before the ECJ, these issues were not of themselves determinative. What they do demonstrate is that determining whether a worker meets the requirements for journey time to be working time should be explored within the whole factual matrix.
  • What happens where a worker builds in the school run? Drops his or her partner at work? Stops to grab some breakfast? As the ECJ alludes to, employers may wish to introduce some form of monitoring arrangements but these bring with them their own legal considerations.
• Where a worker’s journey time is now “working time” for the purposes of the WTR, employers will need to consider the impact on their business’ resourcing and work schedules and ensure that it is compliant with its legal obligations in the WTR regarding a worker’s maximum working week and rest periods. Employers may also wish to consider whether they should now be seeking the agreement of workers to opt out of the maximum working week.
• These businesses may also come under pressure from workers as to how this travel time is paid or receive requests for core working hours to be adjusted to incorporate such time. The ECJ noted that in this case “Tyco remains free to determine the remuneration for the time spent travelling between home and customers“. UK employers must comply with the NMW (and from April, the national living wage) which guarantees a level of pay for hours of work as determined in accordance with that legislation. However, travel between home and a place of work appears to be expressly excluded under the NMW (contrasting with the position on travel between work assignments which has been held to be subject to the NMW by the Employment Appeal Tribunal in Whittlestone v BJP Home Support).  If this is so, pay, if any, for this travel time will be a matter for the employment contract.  However, a legal challenge that this exemption applies on the facts of a case is not impossible.
• In any event, a worker who now understands on a practical level that this travel time is “working time” may well not appreciate the legal distinction between an employer’s obligation to him regarding pay for working hours under the NMW rules and an employer’s legal obligations to him regarding maximum working hours and rest periods under the WTR – a situation which employers will now need to carefully manage. 

In light of this case, businesses who engage peripatetic workers should now take steps to review their existing arrangements. As indicated above, there will be grey areas which will need to be scrutinized carefully and in some cases a business may fall within specific exemptions already contained in the WTR. Please do not hesitate to contact your usual OC Contact if you wish to discuss this decision and its impact for your business in more detail.

(Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA)