Case update (2): No fixed base? Travel time is working time

Summary: Does time spent by peripatetic workers (i.e. those with no permanent work base) travelling from 1) home to their first job of the day and 2) from the last job of the day back home constitute working time for the purposes of EU law?

Yes, says the Court of Justice of the European Union (CJEU) in Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco, available here.

What do we already know?

In our September Newsflash Working time – travel time we updated you that the CJEU had agreed with the opinion of Advocate General Bot in the above case which we updated you on in our June 2015 Newsletter Case update (3): Working time – travel time. We also promised to give you more detail in our September Newsletter, so here it is…

What’s new?

The details of the above CJEU decision are as follows:

Facts: The employer, Tyco, employed technicians to install and maintain security equipment at customer premises in Spain. The technicians were mobile or ‘peripatetic’ workers, i.e. they did not have a “fixed or habitual place of work”. They were provided with a vehicle and travelled to various locations to install and maintain equipment. Before 2011, the technicians travelled each day to a regional office where they received their instructions for the day. This commute to/from the regional offices was not considered to be working time by Tyco.

In 2011, Tyco closed its regional offices and attached all of its workers to a central office in Madrid. It appears that the territory within which the technicians could be instructed to visit customers was unchanged. As a result, instead of attending their regional office each day to receive instructions, all technicians were issued a mobile phone by which they were sent daily instructions as to which customers they would attend the following day. They were not assigned to a fixed place of work and drove straight from their homes to their first appointment of the day and returned home after their last appointment.

The areas covered by the technicians were extensive and on some occasions this travel time amounted to three hours. The question, which was referred to the CJEU, was whether that time spent travelling by the technicians at the beginning and end of the day constituted working time or a rest period for the purposes of EU law i.e. the Working Time Directive.

The CJEU decided that the time spent travelling each day by the technicians between their homes and the premises of the first and last customers did constitute working time.

The key decisive factors were:

1. Tyco determined the list and order of the customers to be followed by the technicians and the times at which they needed to attend each appointment;

2. During the necessary travelling time, the technicians were not able to use their time freely and pursue their own interests, therefore they were at their employer’s disposal; and

3. Tyco previously designated the time spent travelling from the regional offices to the customers’ premises as working time. The closure of the regional offices had shifted the burden of travelling time to the technicians; it was the actions of Tyco and not the wishes of the technicians which meant they were forced to begin and end their journeys at home.

The CJEU noted that its case law has consistently defined any period during which the worker is at work, at the employer’s disposal and carrying out his or her activity or duties as ‘working time’. It agreed with the Advocate General that here the workers’ journeys were a necessary means of providing their technical services to customers and that they had to be regarded as carrying out their activity or duties during that journey time. As the employer set the list and order of the customers for the workers to visit, and the appointment times, the workers were not free to use their travelling time as they pleased and so were at the employer’s disposal.

Implications: This is likely to have significant implications for employers who engage workers with no fixed base. For example, in the care sector where workers visit clients in their homes, where workers carry out repairs and maintenance at customer premises or for employers who have a mobile sales force. Such employers must now be careful to ensure that the travelling time of workers who do not have a permanent work base is accurately recorded. The fact that these hours must be included in determining employees’ working time may impact on whether employers are complying with working time limits contained in the UK’s Working Time Regulations.

Employers may face difficulties with complying with rules on rest breaks and the maximum working week (unless an opt-out has been signed) which may lead to increased cost, and employers may well face pressure to pay workers for this additional working time.

However, it is worth noting that the Working Time Directive does not regulate remuneration and the CJEU specifically rejected the UK Government’s argument that the conclusion in this case would lead to an inevitable increase in costs for the employer. This suggests that the employer remains free to determine the remuneration for time spent travelling between home and customers. For example, it may mean agreeing a lower rate for hourly travel time and a higher rate when the worker is carrying out their main duties. Employers may also need to devise new working patterns or negotiate changes to terms and conditions.

It is worth noting that travel time to and from work is not currently counted as working time for the purposes of the National Minimum Wage and this position is not directly affected by this decision as minimum wage rates are a matter for national law.

The impact is likely to be greatest where workers are entitled to overtime, but contracts of employment would need to be checked to establish whether such travel time would be covered.