Case update (3): Working time – travel time

Summary: Is time spent by peripatetic workers travelling between their home and their customers’ premises working time under the Working Time Directive?

Yes, in his opinion, says the Advocate General in Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco available here.

Facts: The employees installed and maintained security alarm systems. They had no fixed place of work. They were provided with a company vehicle and allocated to a particular region. On each working day, the employees travelled to jobs at customers’ premises allocated by the employer. However, the employer did not count as working time the time spent on the first journey of the day, namely from the worker’s home to the first customer, nor the time spent on the last journey of the day, namely from the last customer’s premises to the worker’s home.

The employees brought a complaint through their union in a Spanish Court that the employer was breaching the Working Time rules by not including their first and last journey of the day. The Spanish Court referred the issue to the CJEU (formerly the ECJ).

As usual, before the CJEU makes a decision, it is for the Advocate General to give his opinion. Advocate General Bot gave his opinion that time spent by the employees travelling from home to their first job of the day and from the last job of the day back home did constitute working time for the purposes of EU law i.e. the Working Time Directive.

The Advocate General applied tests previously developed by the CJEU to decide whether time was working time. These tests are whether, at a particular time, the employees were:

• at the work place;
• at the disposal of the employer; and
• carrying out activities or duties of their job.

The Advocate General ruled that, because the employees had no fixed place of work, their time spent travelling to and from work was an integral part of their duties, in the same way as travelling between jobs during the working day. Therefore their time spent travelling to the first and last job did count as working time.

Implications: This is only an opinion of the Advocate General and therefore not binding on the CJEU or our Tribunals. However, opinions are usually followed by the CJEU. Therefore employers may wish to review how they calculate working time for employees who do not have a fixed or habitual place of work and, in light of this, make any adjustments necessary to ensure they are complying with working time limits contained in the UK’s Working Time Regulations.