European Union: Tormenting Business Or Protecting Basic Worker Rights?

The European Court has risked the wrath of Euro sceptics and anti-red tape commentators by confirming that the journeys to/from home at the beginning and end of the day made by workers with no fixed workplace count as "working time".

The case of Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL & another is significant because if this travel time is "working time", it will impact on the timing of the worker's daily and weekly rest break entitlements under the working time rules. It will also contribute to the total number of hours worked in any one working week - European law imposes a cap of 48 hours, although UK law allows UK workers to opt out of this cap with the written consent of the worker. Furthermore, the working time rules extend beyond employees to all workers so will include agency workers and contractors (other than the genuinely self-employed).

The impact of this case will vary depending on the organisation. Those who have a devolved and dispersed workforce are likely to feel its effects the most. All employers should now review their position to determine the risks of any possible breaches of the working time rules.

Who is affected?

The case affects those workers who have no fixed workplace – such as those involved in visiting customer/client sites as designated by their employer. The employer (Tyco) contended that the time (a) from home to the first client site visit of the day and (b) back home after the last client visit of the day was not working time. Tyco's arguments that this was not working time were rejected by the European Court.

In the UK at least, "normal" commuters who do have a fixed place of work (including offshore) are not affected. If a worker chooses to live in Devon and commute to their office/plant/depot in Derby or Devizes, the commuting time is not working time. The wider health and safety duties and performance management considerations may lead an employer to make enquiries on alertness and effectiveness but, essentially, the choice of a lengthy commute is a lifestyle matter for the individual.

All workers are affected, not merely "employees", so a broader base of the labour force is impacted. Many agency workers and contractors (other than the genuinely self-employed) will be affected.

What happened in this case?

Each Tyco technician covered a regional patch in Spain and attended customer sites using the Tyco vehicle as directed by the company. Each week they attended a logistics hub for various "kit" supplies. In common with many UK employers, the need to attend a regional office/depot had been replaced by technology so that communications with national head office was by mobile phone/handheld devices. Tyco argued that this travelling time was a rest period because the technicians weren't carrying out installation or maintenance. The Court disagreed, finding that travelling time was working time within the meaning of the working time rules. For mobile workers, travelling was an integral part of their duties and they were subject to the employers' instructions during that time (for example, cancelling or adding customer appointments).

The Court noted that the European working time rules should not be subordinate to purely economic considerations (such as increased cost for employers and therefore any additional cost being borne by customers/service users). In other words, safety and the health of workers (and others who may be affected by the actions of an over-tired worker) "trump" the employer's cost or organisational challenges.

What are the implications under UK law?

If the travel time is working time then the following UK working time rules have to be considered:

  • maximum working time (48 hours a week)
  • daily rest breaks (11 hours break) in each 24 hours
  • weekly rest breaks (2 x 24 hour break in each 7 days or 1 x 48 hour break in each 14 days)

There are also restrictions on length of night work and (20 minute) rest breaks, but these are likely to be less problematic. The restrictions for young workers (under 18s) are more onerous still.

Where will the impact be most severe?

Only those workers with "no fixed work abode" are covered by the ruling. As mentioned above, if a worker has a fixed workplace (from where they may then travel to make a number of client calls), the time spent travelling to and from their home and workplace is not working time.

In terms of sectors, much initial attention has been on the care sector (already hard hit by funding cuts and the prospect, from April 2016, of the National Living Wage). The effect is far broader and deeper, however. Any employer with a peripatetic workforce will need to look at its resourcing plans. Can the existing workforce cover the same workload without risking breaching the working time limits and without damaging productivity? How will this be able to withstand the pressures of busy periods? In terms of sectors, facilities management and any business with a repair, service and maintenance offering are likely to be hit hardest.

Is this all about extra costs/pay?

Not directly. The case was concerned with working time – not with pay for travel time. The National Minimum Wage (NMW) has separate rules governing when travel time must attract the NMW. These are likely to be mirrored in the National Living Wage.

Indirectly, however, there may well be an increased cost:

  • There may be a limit to what smart rostering, innovative use of technology and workforce planning can achieve where current work patterns may infringe the working time limits. Additional staff may be required. Therefore, there would be more direct and indirect cost. Headcount metrics will be impacted. We often hear about the UK productivity "gap" and, whilst workforce planners are a resilient bunch, hiring more people may impact on the challenge to maximise the use of the "human capital".
  • Workers and their unions are unlikely to see the nuance between time being working time for health and safety purposes - but not for reward/pay purposes. There are already signs of, for example, union representatives seeking to bring travel time into account in pay negotiations (and it should be noted that some organisations/sectors choose to pay for at least some travel time on a commercial/negotiated basis).

Any exclusions or workarounds, please?

Lawyer's note of caution here - aspects of the working time rules involve criminal sanctions (e.g. the 48 hour week, night working limits, obligations to provide compensatory rest (see below) etc.). Other aspects are more like employment rights – the sanction is an Employment Tribunal claim – so the risk is contingent on a claim being brought.

Certain sectors are excluded entirely from all or most of the key limits – e.g. mobile workers in civil aviation, travelling staff in passenger or goods by road or air transport and workers covered by the "drivers hours" or tachograph regime. Also, police and civil protection staff and certain shipping crew are excluded.

The 48 hour weekly working limit can be opted out of on an individual basis. From a wider safety and health perspective, employers may want to query how this aligns with strategy/values.

Also, employers can negotiate limited relaxations of some rules, e.g. the rest break and night work restrictions, typically with unions or with elected representatives.

Examples of other means of relaxing the rules are as follows:

  • Where "...the worker's different places of work are distant from one another" (e.g. perhaps, a regional manager of a retail/leisure business who is based at a number of outlets)
  • Where continuity is required e.g. utilities production and distribution, telecoms, airports and docks and domestic waste management
  • Where there is a cyclical surge in activities (e.g. tourism, postal services – Christmas etc)
  • Exceptional or unforeseen services and accidents (question whether a motorway accident is unforeseeable?!)
  • Security guards and caretakers where a permanent presence is required
  • Many rail workers

Regardless of any relaxation of the rules, employers must still provide "compensatory rest". This means the worker must receive a period of rest (not working time) as close to the "lost" rest as practicable. Given the health and safety objectives of the rules, an employer is likely to in breach where a worker goes for a lengthy period without being able to take their "lost breaks". Of course, each case will be fact sensitive.

Summary

The impact of this case will vary by organisation – there is not an "off the peg" risk assessment or solution. This will depend on your sector, your resourcing and delivery model, your contracts and policies and your overall risk profile and people strategy. Recent years have seen an increasingly devolved and dispersed workforce. Much of this (technology enabled) process has led to increased efficiency, a focus on outputs and helped with work life balance and empowerment.

Perhaps this case asks as a sense check on that movement – how are people getting to the "job", how safe are they? Are others likely to be impacted? There is a wider discussion here than mere legal compliance: are we resourcing to the optimal level? Often your service delivery people are the only or main interface with your customer/client –this case may act as a useful prompt to look afresh at your "front of house" delivery on a holistic financial, risk, compliance and values basis.

As to whether this case is an example of "tormenting business" or "protecting basic worker rights", that depends on your view. As the initial commentary makes clear the case is a useful rehearsal of some of the Brexit debates. Plenty more to come on that.

Click here to read our previous alert reporting the Advocate General's opinion on this case in June this year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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