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Nick Bailey
Nick Bailey,
ASSOCIATE - SOLICITOR
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Can travelling time equate to “working time”?
16 September 2015

The European Court of Justice (ECJ) has held that workers without a fixed or regular place of work can count their travel time from home to their first appointment as working time for the purposes of the Working Time Directive. This decision follows on from our previous update on this case concerning the publication of the Advocate General’s opinion – http://www.boyesturner.com/article/working-time-travelling-time-for-peripatetic-workers

The facts

Tyco Integrated Security and Tyco Integrated Fire & Security Corporation Servicios (Tyco) employed a group of technicians to install and maintain security equipment at the premises of Tyco’s customers. Although the employer’s main offices were in Madrid, the technicians had no fixed place of work – there were no regional offices from which the engineers would be assigned their work.  Instead, each had the use of a company vehicle for travelling from their home to individual customers. Tyco treated this travelling time not as working time but as a “rest period”. Tyco said that working time began when the technicians arrived at the first customer’s premises and would cease when the technician left the last customer premises. The time spent travelling between the various customers’ premises was treated as working time but the time spent travelling between the technicians’ homes and the customers was not regarded to be working time. This distinction was referred to the ECJ for a ruling.

Decision

The ECJ disagreed with Tyco’s assessment and said that peripatetic workers (workers who are not assigned to a fixed place of work) may count the time they spend travelling between their home and their first and last customers of the day as “working time” under the Working Time Directive.

For time to be counted as “working time” the worker must be (i) working (ii) at the employer’s disposal and (iii) carrying out his activities or duties. It was the ECJ’s view that all of the technicians’ travelling time met these criteria and there was no distinction between the technicians’ travel time from one customer premises to another and travel time between the technicians’ homes to the first and last customer premises.

A key element of its decision was that “rest time” is prescribed by law to compensate for the fatigue arising from periods of work. The ECJ stated that the argument that the technicians’ travel time between their homes and the customers was a rest period "would distort that concept and jeopardise the objective of protecting the safety and health of workers". The function of resting would be undermined if it had to include the time spent travelling to and from work.

Conclusion

This decision does not mean that that all peripatetic workers will automatically be paid for their travel time – merely that the time will count as “working time” for the purposes of European law. The case concerns the Working Time Directive and what time is classed as working time.  The Working Time Directive does not cover how such working time should be paid.  This case is also a European decision and not a domestic one; therefore, for private UK employers they would have to wait for a domestic judgement – although, our courts are likely to follow this ruling.  For now, watch this space but it is something that will no doubt come to affect UK employers as UK cases start to filter through the courts.  Employers should therefore start thinking about shift and working patterns for those staff without a fixed office. 

Also for those who have not opted out of the 48-hours working week under the Working Time Regulations 1998, moving forward, some employees could end up ‘working’ for more than 48 hours when their commute is also considered as working time.  Now is the time to start looking at contracts of employment and working patterns to ensure that employers are best placed to counter the effects of this decision.

For advice on your organisation’s contracts of employment or working arrangements or to discuss how this decision could affect your business and operations, particularly, where you employ mobile workers (i.e. technicians or engineers), please contact our Employment Team on [email protected] or 0118 925 7184.

Federación de Servicios Privados del sindicato Comisiones Obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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