For the majority of workers, their working day does not start until they reach their regular place of work. However, the European Court of Justice ("ECJ") has ruled that time spent travelling to and from home, for workers with no fixed or habitual place of work, should constitute "working time" for the purposes of the Working Time Directive ("WTD").
This decision has implications for employers with mobile work forces such as care workers, sales representatives and engineers. It may also be of relevance to employers looking to adopt a more remote style of working.
What did the ECJ decide?
The ECJ's decision derives from the case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another, which involved a Spanish company who employed technicians to install and maintain security systems. The technicians travelled from their homes straight to their first customers each day and went home after their last customers. The technicians had no fixed place of work. The company treated the first and last journeys of the day (which for some technicians was up to three hours) as "rest time" under the WTD.
The ECJ found that the technicians were "carrying out their activity or duties" and "at the employer's disposal" throughout the entire duration of their journeys between home and work. The ECJ therefore decided that, because travelling was a necessary part of their role, it constituted "working time" under the WTD.
Are mobile workers entitled to extra pay?
The ECJ's decision does not necessarily entitle mobile workers to be paid extra for time spent travelling between their home and place of work; the decision only examines the meaning of "working time" under the WTD. The WTD does not govern pay and instead addresses issues regarding average weekly working time, rest periods and minimum periods of holiday. Indeed, the ECJ said in its decision that it was for national legislation to decide whether travelling time was paid or unpaid.
In the UK, pay is governed by a worker's contract of employment and legislation. The National Minimum Wage Regulations 2015 currently provide that travel from a worker's home to their place of work or assignment does not qualify for NMW. This is also supported by case law.
It may, however, be possible for some mobile workers to claim a right under their contract to be paid for travelling time. For example, if a worker is paid an hourly rate and their contract says that they are to be paid for "all hours worked" this could include travelling hours. Alternatively, travelling time could use up the number of normal hours worked so that overtime rates are triggered.
What are the practical implications for employers of mobile workers?
- 48 hour week – if average working weeks are likely to exceed 48 hours taking into account travel time, ensure workers sign opt out agreements.
- Rest periods – ensure a daily rest period of 11 hours, when travel time is included. It is not possible for employees to opt out of this right and, if necessary, employers should look to amend working patterns accordingly.
- Contracts – review the payment provisions for hourly paid staff and those entitled to overtime payments.
- Controls - consider implementing additional controls on travelling time i.e. stipulating the most efficient travel route.
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.