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European Court ruling about travel time counting as working time

Posted by TonyBrownEmploymentSolicitor on September 16, 2015

The European Court of Justice (ECJ) has ruled that time spent travelling from home to the first customer, and from the last customer of the day back home, counts as 'working time' under the Working Time Directive for employees who do not have a fixed or habitual workplace. 

The increase in time designated as “working time” as a result of this ruling will require action by employers to ensure that workers affected by the ruling do not exceed the maximum limit on weekly working time (where they have not opted out) and get their entitlement to rest periods.

In the case in question, the employees were field based engineers who travelled to appointments across Spain installing and maintaining security systems at customers’ premises. Their daily work schedule was sent to their Blackberries on which they also recorded their time and other information and communicated with Madrid head office. They did not have a work base.

The ECJ accepted the employees’ argument that the first journey of the day (from home to the first appointment) and the last journey of the day (from the last assignment to home) (which in some cases was 100 km) should count as “working time”.

A significant feature of the case for the ECJ was the fact that travel to customers was an integral part of the claimants’ duties as peripatetic workers and could not be separated from other working time.

So what is the issue for UK employers?

The European Working Time Directive (which is implemented in the UK through the Working Time Regulations) gives employees a number of rights, the key ones being a maximum weekly working time (48 hours), weekly rest (a continuous 24 hours once a week), daily rest (continuous 11 hours in every 24) and rest breaks (20 minutes for each 6 hours' work).

The increase in time designated as “working time” as a result of this ruling will require action by employers to ensure that workers affected by the ruling do not exceed the maximum limit on weekly working time (where they have not opted out) and get their entitlement to rest periods.

Does the ruling apply to all employees?

No, only mobile workers with no fixed or habitual place of work are affected by the ruling. In addition to field-based engineers, like those in the case before the ECJ, the beneficiaries of the ruling are likely to include care workers and sales representatives, indeed, anyone whose job involves visiting customers at their homes or workplace.

Commuting to and from work is not regarded as working time for non-peripatetic employees and the ECJ ruling does not change that. So, for most people commuting to work is still not to be regarded as working time.

Is there anything employers can do to mitigate the impact of the ECJ ruling?

An obvious step is to ensure that employees’ assignments at the start and end of the day are nearest to their homes. Employers should also consider asking employees to opt out of the 48-hour working week. However, even in this case, employers will need to ensure that peripatetic employees are able to take at least 11 hours' rest between getting home at night and setting off again the following morning.

Does the ruling have an impact on pay?

The ECJ decision was about working time: it did not deal with a worker’s entitlement to pay during working time. However, the ruling may have implications for staff paid hourly. Ironically, workers who are on minimum wage may not see an increase in pay because of this ruling. This is because the National Minimum Wage does not currently apply to travel time between home and the workplace.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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