Journeys made by mobile workers must count as working time, the European Court of Justice (ECJ) has confirmed today.
The ruling could have significant implications for companies that employ mobile workers who spend a lot of time travelling between appointments.
Working time resources
FAQ: In what circumstances is travelling time included in the working time calculation?
EAT decides working time includes attendance at union meetings
Holiday pay tribunal adds wording into UK working time legislation to cover commission
Northern Ireland Court of Appeal decision suggests regular voluntary overtime should be included
The decision on the case of Spanish security system installation company Tyco Integrated Security SL followed the Advocate General’s opinion on the case earlier this year.
It concerns Tyco’s technicians, who use company vehicles to travel to appointments across Spain. The employer has argued that the first journey of the day (from home to the first appointment) or the last journey of the day (from the last assignment to home) do not count as “working time”.
Instead, they regard this travel time as rest time under the Working Time Directive. The technicians brought a claim, and the Spanish courts referred the case to the ECJ to consider whether the travel time at the start and end of the day was officially working time.
The Court ruled: “Where workers, such as those in the situation at issue, do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the directive.
It said that not taking the journeys into account would mean Tyco could claim that only the time spent actually installing and maintaining security systems was within the concept of “working time”, and that this would jeopardise the health and safety of its workers.
The ECJ added that, because 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 to pursue their own interests.
Chris Tutton, an employment partner at Irwin Mitchell, said that the ruling could mean employers will have to ask staff to opt out of the Working Time Directive’s 48-hour working week.
“Many UK companies do not consider travel time outside normal working hours as working time, but now that the ECJ has said that it should, thousands of companies may need to make changes, for example, by ensuring that assignments at the start and end of the day are near employees’ homes, adjusting working hours generally or asking employees to opt out of the 48-hour working week,” he said.
“If they don’t, employees could quickly exceed the number of working hours that they are legally allowed to work and bosses could therefore soon find that they are operating illegally and at risk of facing costly claims against them.”
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Graham Richardson, legal director at Bond Dickinson, said: “Although the ECJ’s decision relates to a claim in the Spanish Court, the case concerns the EU Working Time Directive, on which the Working Time Regulations in Great Britain are based, so the impact on British employers and peripatetic workers could be substantial.”
He added that the ruling could have significant implications on the maximum working week and rest breaks for such staff. “Employers engaging peripatetic workers that may be particularly affected include, for example, employers in the care sector and employers of staff whose primary duties are to carry out customer or client visits which may include, for example, travelling sales representatives and domestic heating engineers,” he added.
