The European Court of Justice has held that time spent by workers, who do not have a fixed or habitual place of work, travelling between their homes and the premises of the first and last customers of the day constitutes “working time”.
This decision has potentially wide ranging implications for employers that rely heavily on mobile workers that do not have a fixed or habitual place of work (such as service engineers or carers), as it could substantially increase the working time of employees that are required to travel extensively on a daily basis. Therefore employers need to be mindful of rest breaks and the impact on the 48 hour week. However, it may not apply where employees have genuine autonomy to plan their own schedules each day without interference from their employer. The extent of the financial implications of this decision would depend on many factors such as the distance any mobile worker travels at the beginning and end of the working day and their terms and condition of employment in relation to travel time and remuneration. The European Court of Justice ("ECJ") did note that an employer would be free to determine the remuneration for the time spent travelling between an employee's home and customers.
In Federacion de Servicios Privados del sindicato Comisioner obreras –v- Tyco Integrated Security SL, the ECJ considered a question referred to it by the Spanish courts concerning what constitutes “working time” in relation to the travel of mobile workers at the beginning and end of the day.
Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicos (Tyco) employ a number of technicians that are responsible for installing and/or maintaining security equipment at both private and commercial premises throughout Spain. Each technician is assigned a geographical area and provided with a company car which they use to travel from their home to various customers’ premises and then back home from their last customer at the end of the working day. In one instance, a technician was required to travel 100km to its first customer of the day (approximately 3 hours of travel time). Prior to the closure of the provincial offices, the technicians would travel to their provincial office at the beginning of the day to pick up their company vehicle and travel to and from their customers from that office accordingly. Under this old system, any travel from leaving the regional office at the beginning of the day to returning to the regional office at the end of the day was treated by Tyco as “working time”.
Tyco provide the technicians with a mobile phone which allows them to communicate with their central office in Madrid, and on the eve of their working day the technicians are provided with a task list for the following day which lists the time and location of their various appointments. For the purposes of calculating the “working time” of the technicians, the time spent travelling from their homes to the premises of the first customer and from the premises of the last customer back to their homes is not included. It is this issue that was referred to the ECJ and the question whether this time should be considered “working time” was asked.
The ECJ noted that there is no intermediate category between “working time” and “rest periods” for the purposes of the EU Working Time Directive 2003 (the “Directive”) and therefore the time in issue must be categorised as one or the other. They decided that the time was to be treated as “working time”, noting on several occasions that the travelling time of the technicians between the regional offices and the premises of their first and last customers of the day was treated as working time prior to the closures of the regional offices.
They also noted that as travel to and from customers’ premises is a necessary means of providing the technical services to customers (as well as being an integral part of being a worker without a fixed or habitual place of work), restricting “working time” to only that time spent at a customer’s premises would compromise the central objective of the Directive of protecting the safety and health of workers. The ECJ presumably took the view that omitting this travel time would provide a false representation of the time actually spent working for Tyco, and may derive the technicians of the protection offered by the Directive. Further, despite being free to decide their route of travel the ECJ decided that whilst travelling the technician’s remained at the disposal of their employer’s as appointments could be cancelled or altered and their task list unilaterally changed.
Accordingly, the ECJ considered that during the time spent travelling to and from home at the beginning and end of the day the technicians were working at their employer’s disposal and carrying out their duties and it was therefore “working time” for the purposes of the Directive. This is despite concerns being raised by the UK and Spanish government that the decision could be abused by employees.
Graham Irons comments: "This decision will be an unwelcome one for many employers with mobile workforces especially as it not only affects calculation of working time but in some cases it may also have an impact on remuneration. Employers may need to consider mitigating any impact by taking control of scheduling or possibly by bringing in a (lower) pay rate for such travel time.”