Federacion de Servicios Privado del sindicato Comisiones Obreras v Tyco Integrated Security SL and another
Following this judgement, for employees (without a fixed place of work) and who have limited influence or control over the scheduling of their customers or client visits, time spent travelling between their home and the premises of their first and last customers of the day is “working time” under the Working Time Directive.
Tyco employs technicians who install and maintain security equipment in private, industrial and commercial premises within a specific geographical assigned to them.
Tyco determined, through an itinerary sent to each worker the night before, which customers the worker would visit and when. Each worker then travelled from their home directly to their customer and, at the end of the day, from the last customer, home. The distances travelled vary but were sometimes over 100km a day.
Tyco did not count time spent travelling between home and the first site and the last site and home as working time. Instead, it calculated a working day as starting with the worker’s arrival at the first site and ending with their departure from the last site.
The technicians brought a claim that Tyco was breaching the working time legislation by not including the additional time spent travelling to and from home. The Spanish court referred the issue to the European Court of Justice (ECJ), who were required to determine whether the first and last journeys of the day should be included in working time.
The ECJ decided that, in these circumstances, travelling time did count towards working time. It noted the following in making its decision:
- the legislation is intended to protect the health & safety of workers
- travelling is an integral part of being a worker without a fixed or habitual place of work
- the court has continually held that the legislation defines the concept of “working time” as any period during which the worker is at work, at the employer’s disposal (ie legally obliged to obey the instructions of his employer) and carrying out his activity or duties for that employer.
The nature of the rostering arrangement meant that the employees had lost the ability to freely determine their travel arrangements between their homes and the place they started and finished their working day.
Points to note
The key here is whether the time spent between home and first customer and last customer and home is determined by the company, without flexibility, or structured in such a way that the employee can manage the itinerary/list themselves without major constraints. The important element is whether the arrangement has sufficient give to enable the employee to pursue their own interests. In this case, the employer adopted a highly directional and fixed approach: the order of the customers was set, as were the meeting times. That allowed little scope for movement or self-determination. We imagine that situation could be compared and contrasted with one where an employee simply has a list of customers/clients which must be visited albeit the order and times at the discretion of the individual. If the scheduling was also then run over a longer period, say a week, the employee arguably has scope to manage their own time and by extension pursue their own interests. In this situation, you’ll have a better argument that it’s not working time.