It would not be unreasonable to think that someone is not actually at work until they are sat at their desk, ready to start their working day. After all, many of us aren’t paid for our daily commutes to work and back.
But, as you may be aware, there has been an important recent decision in the European Courts regarding working time and when travelling to work may actually count as being at work (Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another).
When is someone classed as being “at work”?
In order for someone to be classed as being “at work”, the following criteria must be met. The worker must be:
- at the employer’s disposal; and
- carrying out their duties/activities.
So where does travel come into it?
Travel time starts to come into the equation when a worker does not have a fixed or ‘habitual’ place of work. Say for instance when someone does not have that desk to sit behind at a particular place or work.
This may include for example sales staff that travel around, plumbers who go from one job to the next throughout their working day, or care workers that travel to care for people in their own homes. These are often referred to as “peripatetic workers”.
For these kinds of workers, they will often travel straight from home to their first customer, travel between customers during the day, and finally travel straight back home after they have finished with their last customer.
The key question in this recent case was whether that travelling time counted as working time, or whether it amounted to a rest period.
The recent case – the facts
In this Spanish case, the employer carried out a business installing and maintaining security systems. Each technician is assigned a geographical area and they use a company vehicle to travel from their homes to the places where they carry out installation or maintenance. They then return home at the end of the day from their last customer.
The distances from their home to their assignments vary and are sometimes more than 100 km. They receive details of their assignments for the following day from the company’s head office via an application on a mobile phone, which shows them the task list for that day.
The employer calculates the working day as starting from the time the technician arrives at their first assignment and ending when they leave their last assignment. They did not include the time spent travelling to and from the first and last customers to home and counted this as a rest period.
The recent decision
The ECJ, in this case, followed the Advocate General’s opinion, that the first and last journeys of the day should be classified as working time. The ECJ gave this decision based on the 3 criteria listed above for when someone is classed as being at work:
- At work– The ECJ said that if a worker does not have a fixed place of work, and is carrying out their duties on journeys to and from their customers, then this time should be classed as the time that the worker is working.
- At the employer’s disposal – In this case, the employer was able to change the order that the worker visited the customers. The employer was also able to cancel appointments at any time. If that happened, this meant that the worker would have to react to these changes during their journeys.
Due to this, the ECJ found that the workers had to obey their employer’s instructions whilst they were travelling. So, the worker was not able to use their time freely to pursue their own interests. As a result, the worker was at their employer’s disposal.
- Carrying out their duties/activities – The ECJ said that workers must be regarded as carrying out their duties during the time spent travelling to and from customers.
So what does this mean for you?
Does this sound familiar to your business? Do you have workers that have no fixed place of work? If it does, it may be a good time for you to think about how this may affect you.
This ruling may have a number of effects on you:
- As travelling to a worker’s first customer and home from their last customer may now be classed as ‘working time’, this should be taken into consideration when calculating how many hours the worker is working each week. Remember that, if the worker has not ‘contracted out’ of the 48 hour average maximum working week, this may be something for you to consider asking the worker to do.
- You may need to think about paying your workers for the period of time they are travelling to their first customer, and back home from their last customer. It may be worth putting in some kind of policy in place to ensure that this is not exploited.
If you would like advice on this case or would like to discuss an opt-out agreement, please contact our Employment & HR team on 01332 226149.