Employment Eye - Travel to work can be 'work'

Sarah Lamont follows up on our recent Alert on Tyco Integrated Services, and resolves some of the potential confusion over the practical and cost implications of the decision that travel time can count as 'work' for mobile workers.

The background

'Working time' under the Working Time Directive ('the Directive') is defined as any period during which a worker is

• working
• at the employer's disposal; and
• carrying out their activities or duties.

The Directive also defines "rest period" as any period which is not working time. Under the Directive, workers are entitled to minimum rest breaks and, unless the worker has opted out, a maximum working week of 48 hours.

The Directive is transposed into our domestic legislation by the Working Time Regulations 1998 (SI 1998/1833) (WTR).

Neither the Directive nor the WTR state whether travel to and from a place of work, or between places of work, should be considered 'working time'.  Employers generally include travel during the working hours as 'working time' and travel from home is usually excluded.

The facts

The case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, concerns security system installation and maintenance staff who are required to travel to various locations specified by their employer in order to carry out their work.  The workers in question do not have any fixed place of work; they travel from home to the first customer of the day, then to various locations and back home again.   However, this arrangement was only put in place following the closure of the company's regional office; prior to that, the workers collected their vehicles and schedules for the day from that office and travel to and from their first and last appointments was included in their working day.

The workers brought a complaint in the Spanish courts, alleging that their employer is in breach of the Working Time Regulations 1998 by excluding from their 'working time' the time that is spent travelling to and from home, at the beginning and end of the day.

The decision

As we reported in June 2015, the Advocate-General's initial Opinion on this case was that travel time to and from the first and last customers of the day should be counted as working time, because the workers are at the employer's 'disposal': they are subject to the authority of the employer and travel is an integral and inherent part of their work. 

Earlier this month, the European Court of Justice (ECJ) agreed with the Advocate-General's conclusions and reasoning.  The ECJ said that

• the first and last journeys of the day were counted as 'working time' before the closure of the regional office, so it followed that these journeys were part of the workers carrying out their duties
• the company has control of which customers the workers see and when, so the workers are at the company's disposal
• the workers are effectively 'at work' on their first and last journeys of the day; the fact that the journeys happen to start and finish at home is something of a red herring. The closure of the regional office meant that the employees lost the ability to determine the distance from their homes to the usual location of the start and finish of their day.

So, for peripatetic workers (i.e. workers with no fixed place of work), travel time to various clients or customers, to or from home, can be considered to be part of workers' working day.  

What does this mean for me?

This decision provides clarity for employers that travel time for mobile workers to their first appointment of the day, and from their last appointment, is 'working time'.  This will affect all workers who have no fixed place of work, such as community nurses, community care workers and repair and maintenance workers.

The key concern amongst most employers will be the potential impact on cost; but, contrary to many press reports, this decision does not relate to pay. The Tyco decision considered the definition of 'working time' only for the purpose of calculating workers' entitlements to rest breaks and maximum working week. You will, therefore, need to check whether this decision affects your workers and, if so, audit whether the increase in their 'working' hours triggers increased rest breaks or means that they will exceed the maximum 48 hour working week (if they have not opted out). However, it is unlikely this will have an automatic impact on pay. 

Furthermore, please note that the National Minimum Wage Regulations expressly exclude travel time from home.  This is reflected in the non-statutory minimum wage guidance from the Department for Business Innovation and Skills which states, at page 33, that "Time spent travelling between home and someone's normal place of work and back again does not count as time when the minimum wage is payable."  However, the guidance does suggest that travel between work assignments should be counted for the purposes of the national minimum wage – and it has been reported that this is currently the subject of an employment tribunal challenge to home-care provider, MiHomecare, which excludes its care workers' travel time between home visits when making pay calculations. 

In the coming months, it is possible that unions will see the Tyco decision as an opportunity to put pressure on the government to change the National Minimum Wage Regulations, so that travel time to and from home is included in calculations for the purpose of paying the minimum wage (and the new 'living wage').  However, for the time being, this decision only applies to the calculation of working time for the purpose of workers' maximum working week and entitlements to rest breaks.