Travelling time for workers with no fixed workplace counts as ‘working time’

In Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL (TIS), the European Court of Justice (ECJ) has held that, for workers who do not have a fixed or habitual place of work, time spent travelling between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’ within the meaning of the EU Working Time Directive.

TIS employs around 75 workers in Spain to install and maintain security equipment in homes and business premises. Although the workers are all assigned to the central office in Madrid, each has responsibility for a particular geographical area. The workers have the use of a company vehicle in which they travel every day from their homes to the places where they are to carry out installation or maintenance work. They use the same vehicle to return home at the end of the day. The extent of such travel varies from day to day and can sometimes be more than 100 km. Under TIS’s policy, neither the first nor last journey of the day – the journey from the worker’s home to the first customer and the journey from the last customer back to the worker’s home – is counted as ‘working time’. TIS therefore calculates the working day as running from the worker’s arrival at the first customer of the day to the time that the worker leaves the premises of the last customer. The workers sought to challenge this classification as being contrary to the EU Working Time Directive.

In June 2015, the Advocate General (AG) gave the view that travelling workers who have no fixed or habitual workplace should be able to count the time spent travelling from home to the first customer and from the last customer back to their homes as ‘working time’ under the Directive. He noted that the Directive does not provide for an intermediate category between ‘working time’ and ‘rest’, so that time must be classified as one or the other. In his view, travelling is an integral part of the work of such ‘peripatetic workers’ and is a necessary means of providing services to the customers, meaning that it should be regarded as forming part of the workers’ activities.

The ECJ has now given its judgment, confirming the conclusion reached by the AG. It noted ECJ case law has consistently defined any period during which the worker is at work, at the employer’s disposal and carrying out his or her activity or duties as ‘working time’. It adopted the AG’s observation that the workers’ journeys were a necessary means of providing their technical services to customers and that they had to be regarded as carrying out their activity or duties during that time. Given that TIS determined the list and order of the customers for the workers to visit, and the appointment times, the workers were not free to use their time as they pleased and so were at the employer’s disposal. Furthermore, given that travelling is an integral part of being a worker without a fixed or habitual place of work, it could not be said that their ‘place of work’ was restricted to the physical areas of their work on customers’ premises. For all these reasons, the travelling time has to be regarded as ‘working time’ under the Directive.

In so deciding, the ECJ rejected the UK Government’s argument that this conclusion would lead to an inevitable increase in costs for the employer. The ECJ pointed out that TIS 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.

Our view of the implications for employers in the UK is that because the UK has the benefit of the opt out from the maximum 48 hours a week that can be worked, the effect on additional hours worked by an employee should not be affected provided the employees have opted out. Where the effect will come is with pay for this additional time. Do employers already pay for the time spent on the first and last journeys of the day? If they do not, then in our opinion they are going to have to. But the pay rate does not have to be the same as for the rest of the work day. In our opinion it could be at the Minimum Wage level for that time.

As for the decision itself, in our opinion it is seriously flawed. The decision is based on the fact that employees are not free to use their time as they please. But that is no different to employees who get up and go to work to a fixed or habitual place of work in the morning. It is no different to an employee at the end of the day deciding to go somewhere else other than home. The TIS employees have the ability at the end of the day to go elsewhere than to their home.

This case reinforces our view that on the continent of Europe you have to be a brave employer to take on an employee in a dispute.

Tom Redfern