Do mobile workers have to be paid for travelling to their first job?

Travel time and on-call time are treated differently for the purposes of the national minimum wage and the working time legislation, as consultant editor Darren Newman explains.

Some confusion has been caused by the recent European Court of Justice (ECJ) case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA Case C-266/14 ECJ.

The ECJ held that workers with no fixed place of work were “working” when travelling to their first assignment in the morning and travelling back home again at the end of the day.

However, contrary to some reports, the case does not have anything to do with how much people are paid when they are travelling to and from work – as the Court makes explicitly clear in its judgment.

How much an employee is paid – and for what – is primarily a matter of contract. There is no obligation on an employer to pay an employee for each hour of work. For example, many employees work unpaid overtime. There is no doubt that it counts as working time, but that does not mean that they have to be paid for it. What matters is what the contract says.

The only law we have on how much an employee is paid is the National Minimum Wage Act 1998 – with most of the detail now set out in the National Minimum Wage Regulations 2015 (SI 2015/621).

But the law on the national minimum wage does not require each hour of work to be paid at a particular rate. It requires that the average hourly rate of a worker should be at least the level of the national minimum wage.

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So if an employee works for 30 hours in a week and then does 10 hours of unpaid overtime…

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