Time spent travelling to work ‘is work’

The time spent travelling to and from the first and last jobs by employees without a fixed office should be regarded as work, European judges have ruled.

Until now, mobile workers who travel to get to or from their first or last appointment of the day were not required to count that time as work.

However, the European Court of Justice judgement (ECJ) has ruled that those without a fixed office should consider the time they spend travelling between their homes and the premises of their first and last jobs as part of their working hours.

The case

The case involved a Spanish company called Tyco who supplied and maintained security equipment. The company had a team of engineers who fitted and maintained the equipment. They had been employed to work out of a number of regional offices.

Tyco, in a cost cutting exercise, closed all of the regional offices and centralised their administration at head office. This meant that the engineers worked from home.

Tyco treated the working day as running from the time of arrival at the first appointment until the departure from the last appointment. The engineers complained that this meant that there was a breach of their right to an 11 consecutive hour rest break.

The ECJ ruled that:

• The travel time was an integral part of the work and therefore should be regarded as forming part of the workers activities.
• During travel time the workers remained under the control of the employer who could change, make and cancel appointments and to put into place procedures to avoid potential abuse by employees.
• It was contrary to the directive’s objective to protect the health and safety of employees if rest periods were reduced because of the travelling time.

What does this mean for you?

The immediate impact on employers will be to ensure that:

• If working hours are extended by this ruling and there becomes a danger of employees working more than 48 hours, it will be necessary to ensure that staff have signed the 48hour opt out.
• There are procedures in place to ensure that there is sufficient monitoring of start and finish times to ensure that there is no breach of employees right to the required rest period.

In giving its ruling, the ECJ did say that it is for national legislation to determine  whether or not this travelling time is paid or unpaid. However, given the ruling that travel time is an integral part of the employees’ work and the provision of the services to clients it is likely that there will be further decisions in favour of employees as follows:

• The calculation of holiday pay.
• Payment for the travelling time
• The effect on the National Minimum Wage. The current NMW legislation has an express exclusion for travel time between home and work place or place of assignment and this may be open to interpretation or change as legislation is enacted to move from the NMW to the living wage.

If you want advice on this subject, your contact us. Alternatively, you can download one of our handy employer resources.

By Peter Redman LLB