For those of us who spend a significant amount of time each day crammed uncomfortably onto a heaving bus or train carriage, it may be a source of amusement to learn that under the Working Time Directive, such journeys are classified as ‘rest time’. The legal approach adopted under the Directive is a binary one; anything not covered by the concept of ‘working time’ is covered by the concept of ‘rest period’, and vice versa.

The general rule that time spent travelling to and from work does not fall within the definition of ‘working time’ was called into question by Advocate General Bot in Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA Case C 266/14 ECJ.

The case involves two security system companies whose workers are required to travel to different customers’ premises in order to install and maintain security equipment. Each worker is provided with a company vehicle and allocated a geographical area in which to operate.

The Attorney General found that in the case of peripatetic workers, who have no fixed or habitual place of work, it would be wrong for their employer not to count as ‘working time’ the period spent travelling to and from the premises of their first and last customer of the day.

He emphasised that in order for the workers to fulfil their role, it was incumbent on them to drive between various customers’ premises, and while doing so they were considered ‘at the disposal of their employers’.

If the European Court of Justice (ECJ) is minded to follow the Advocate General’s opinion, a potentially wide ranging class of workers (and employees) could fall within the excepted category. By way of example, gas and electricity service engineers, sales reps and couriers may all be required to travel to different customers’ premises, designated by their employers, such that it becomes an integral and obligatory part of their job.

Commentary

Employers may have to implement new systems to ensure that their staff are properly remunerated for the time they spend travelling to their first job of the day and home from their last.

We don’t yet know whether the ECJ will decide to follow the Advocate General’s opinion, which of itself is not binding. All will be revealed in due course.