The European Court of Justice (ECJ) has followed the Advocate General’s opinion by finding that the time spent by workers who do not have a fixed place of work and who travel from their home to a customer’s premises can be regarded as ‘working time’ for the purpose of the Working Time Directive (WTD).
The media have taken significant interest in the decision of the ECJ in the case of Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL.
The facts of the case were that Tyco employed a group of technicians to install and maintain security systems. Tyco closed down its provincial offices in Spain and assigned all employees to the central office in Madrid. Technicians were informed of their daily assignments the day before which they travelled to, from home, using a company vehicle. They then carried out a number of assignments throughout the day and went directly home after their last assignment of the day.
Tyco did not treat the travel time to the first job of the day and from the last job of the day to and from home as ‘working time’ under the WTD.
The WTD defines ‘working time’ as any period during which the worker is working, at the employer’s disposal; and carrying out their duties in accordance with national laws and practice.
The employees complained that Tyco were in breach of the national working time rules. The ECJ agreed with the Advocate General that this time was in fact ‘working time’ given that these workers had no fixed or habitual place of work, the assignments were designated by the employer and they were at the employer’s disposal during this travel time. This is different from the usual journey to and from a fixed or habitual place of work which is the employee’s private time.
This case is of enormous significance to employers who require their workers to travel to and from customer bases without any fixed workplace. Employers should now review their working arrangements. Importantly this case only relates to working time and not pay. The WTD is concerned only with the organisation of working time such as average weekly working time, rest periods and rest breaks and minimum periods of holiday pay. However, if this travel time is not factored into current working hours, there is a risk that you could be in breach of the Working Time Regulations if workers have not opted out of the 48 hour working week, or if employers do not allow workers the necessary rest breaks.
If this case does affect your workers, you should review your contracts and consider the impact of this case. It is important to note that the ECJ stated that individual European countries should decide the level of pay for this working travel time. Under the National Minimum Wage Regulations travel time between home and place of work is specifically excluded for those workers with set working hours and this case does not change this position. However, employers should consider the terms of the contract for these types of workers and consider whether the terms need to be changed (including any contractual right to paid overtime).
Another area which employers should also consider what they may be able to do to avoid potential abuse of this travel time which could include the introduction of monitoring procedures such as tracking devices in company vehicles.
Please let us know if we can help with any review of your contracts, or to assist with implementing monitoring procedures of employees.