The European Court of Justice has handed down its judgment in Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor on the meaning of ‘working time’ for workers who do not have a fixed or habitual place of work. The ECJ said that the time these workers spend travelling between their homes and the premises of the first and last customers designated by their employer can constitute ‘working time’ within the meaning of point (1) of Article 2 the EU Working Time Directive (No.2003/88).
Implementation of the Working Time Directive
The Working Time Directive was implemented in the UK by the Working Time Regulations 1998 (SI 1998/1833). This watershed case has been championed by unions, while employers continue to raise concerns over increasing costs.
Tyco employs workers to install and maintain security equipment in homes and businesses. The workers use a company vehicle to travel from their homes to the customers’ sites. They use the same vehicle to return home at the end of the day. The extent of the travel varies, with the referring court noting these journeys can be over three hours. Under Tyco policy, neither the first nor last journey of the day (from and to the workers’ homes) count as working time. A Spanish court referred the matter to the ECJ to clarify the meaning of ‘working time’ in this context.
Article 2 of the Working Time Directive defines any period during which a worker is at work, at the employer’s disposal and carrying out his or her activity or duties as ‘working time.’ Any time which is not working time can only be rest. In June 2015, the Advocate General noted that the directive does not provide for an intermediate category between ‘working time’ and ‘rest’.
The ECJ confirmed the Advocate General’s view of travelling time as working time on three grounds:
- Travelling constituted a necessary means of providing their service and had to be regarded as carrying out their activity or duty;
- It could not be said that the ‘place of work’ was solely the customers’ premises, as travelling is an integral part of being a worker without a fixed or habitual place of work;
- Given that Tyco determined the list of work, workers were not free to manage their time or pursue their own interests so were, therefore, at the employer’s disposal.
The ruling applies only to mobile workers who have no fixed or usual place of work and whose journeys between home and the first and last customers of the day now count as working time under the Working Time Directive. This is likely to include care workers, sales reps, and maintenance engineers, among others.
Employers will now need to take this into account to make sure they comply with the Working Time Regulations when calculating employees’ maximum working hours and rest periods. For the purposes of the 48-hour working week limit, employers may wish to consider asking workers to opt out of the Working Time Directive. However, note that workers cannot be forced to opt out. Employers in unionised workforces may wish to consider whether wider opt-outs from working time entitlements should be agreed through collective bargaining.
In addition, employers could consider allocating first and last assignments near the employees’ homes to reduce work travel time. Considering travelling time is likely to have commercial ramifications for businesses, affecting the number of customers a worker can serve each day or week, and whether long-distance customers are viable.
National Minimum Wage
Employers may also wish to review their remuneration structures to prevent any increases in costs. The ECJ pointed out that Tyco remained free to determine the remuneration for travelling time and that, save in the special case of paid annual leave, the directive does not apply to the remuneration of workers. Thus, the method of remuneration would be left to the relevant provisions of national law. The UK’s National Minimum Wage Regulations 2015 expressly excludes travel from a worker’s home to their place of work or assignment.
Concerns over employees conducting their personal business at the beginning or end of the day could be met by putting in place monitoring procedures to avoid potential abuse. An example could be the use of a company credit card solely for professional use, such as paying for fuel.
As the national living wage is set to be introduced in April 2016, employers will be increasingly mindful of rising costs. With the EU referendum looming, this ECJ case will add more fuel to the ‘in/out’ lobbies.
For more information on the issues in this article and how they might affect working arrangements at your work place, contact our Employment team.