Ensuring compliance with European law when it comes to “working time” can be tricky for employers at the best of times let alone when it comes to grey areas. Just recently we reported on the Employment Tribunal’s decision that time spent at trade union meetings was time that should be considered as “working time”. The next area of uncertainty which is being tackled currently in the Spanish courts is in relation to peripatetic workers (workers who are not assigned a fixedplace of work, such as travelling salespeople or certain tradespeople) and the time it takes them to travel from home to the first client of the day and back home from the last client of the day.
The Spanish courts have referred the case to the European Court of Justice who have in turn sought an opinion from the Advocate General (the “AG”).
The Spanish Case
The facts of the case reflect what may be fairly normal practices for many employers. The company in Spain maintains security equipment. It's head quarters are in Madrid but a majority of its employees are based regionally and travel to the employers’ clients to work on-site and carry out required maintenance.
The workers have now challenged the company policy, under the Working Time Directive, of considering their working time from time of arrival at the first customer to leaving the premises of the last customer of the day.
The AG has published his opinion. It makes clear that peripatetic workers, may count the time they spend travelling between home and their first and last customers of the day as “working time” under the Directive.
The AG reiterated that 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 is the AG’s view that the travelling time in this case met all the criteria.
A key element of this decision was that “rest time” is prescribed by law to compensate for the fatigue arising from periods of work. This function of resting would be undermined if it also had to include the time spent travelling to and from work.
What happens next…?
Whilst it is not an absolute guarantee that the ECJ will follow the AG’s opinion it is fair to say that this is likely. And, if it is followed this could have a significant impact on the way that UK employers who employ peripatetic workers will have to calculate their working hours, rest periods and pay.
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.