Summary and implications

The European Court of Justice (ECJ) has decided that time spent by mobile workers travelling between their home and the customer's premises is considered "working time" for the purposes of the Working Time Directive (WTD) and therefore the UK's Working Time Regulations (WTR).

The case, Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (C-266/14), involved a Spanish-based security system installation company which treated the first and last journey of the day made by its technicians, to and from their homes, as "rest time" under the WTD. The ECJ held that this travel was "working time" because the workers were carrying out their activities or duties and were "at the employer's disposal".

Who does this affect?

Mobile workers who do not have a "fixed or habitual place of work", include maintenance technicians, engineers, sales representatives, as well as care workers. It could include construction workers who move from site to site on a regular basis, although it is arguable (but not entirely clear) that those who work on longer term projects at client sites would be regarded as having a fixed or habitual place of work for the duration of that project.

What does this mean? What will it cost?

The travel time of mobile workers should be taken into account when calculating their working hours for the purposes of the 48 hour working week limit and rest breaks. For those who are not prepared to opt out of the working time limit, it may mean that the employer is in breach of the WTR. Going forward this could have a commercial impact on the amount of customers a worker can serve each day/week, depending on the travelling time involved.

It may also mean that mobile workers will be entitled to be paid for their first and last journeys to and from customer's premises, but that will depend on the terms of their contract of employment.

Some observers have suggested that it will mean an increase in pay for those on the national minimum wage as they will be working more hours, but again that does not necessarily follow. The ECJ noted in its judgment that employers are free to determine the rate of remuneration for travelling time and that, except in relation to paid annual leave, what workers are paid for travelling time is a matter for the national laws of member states.

Under the UK's National Minimum Wage Regulations 2015 travel from a worker's home to their place of work or assignment does not qualify for the national minimum wage. It remains to be seen whether, given the ECJ's decision, trade unions exert pressure on the Government to change its position on this.

What action should you take?

  • Identify which parts of the business and which workers this might impact;
  • Consider whether the employees who are affected have signed working time opt outs. If not, invite them to opt out;
  • Consider whether your mobile workers are entitled to pay for the additional hours. What does their contract say?
  • Consider allocating assignments that start and finish near employees' homes to reduce the amount of travel time; and
  • Keep a watching brief for any UK developments on this issue. We expect there will be some.

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.