A recent decision  of the Court of Justice of the European Union (the “CJEU”) has found that journeys made by workers without a fixed place of work between their homes and the first and last customer of the day count as working time for the purposes of the EU Working Time Directive (the “Directive”).
The decision could mean that certain employers may be exposed to increased employment costs or an increased risk of claims for alleged breaches of employment legislation.
This case concerned the employees of a Spanish security company called Tyco. The employees were originally based in regional offices throughout Spain and were required to install and monitor security equipment in homes and commercial premises. In 2011, Tyco closed all of their regional offices and the employees began to operate from home. The employees had to travel varying distances from their homes, with some employees travelling up to 100 kilometres or a 3 hour drive.
In calculating the number of hours worked by the employees, Tyco did not count the time spent travelling between home and the places they worked as working time, instead categorising it as a rest period.
Under the Directive, working time is defined as any period during which the worker is working at the employer’s direction and carrying out his activity or duties. All other time is viewed as a rest period.
The National High Court of Spain referred the issue to the CJEU. It asked whether the time spent travelling to and from work by workers without a fixed place of work should be regarded as working time.
The CJEU found that these journeys should be regarded as working time for the purposes of the Directive. In reaching this decision, the CJEU noted that throughout these journeys:
- The employees were carrying out their activity / duties - Prior to the closure of the regional offices, Tyco had regarded the first and last journeys from those offices as counting towards working time. The only thing that had changed since the closure of the regional offices was the starting point of the journeys i.e. the nature of them remained the same.
- The employees were at the employer’s disposal - Although the employees could decide which route to take, they were not able to pursue their own interests during that travel time and, as such, were at Tyco's disposal.
- The employees were working – The CJEU said that if an employee who no longer has a fixed place of work is carrying out his duties during his journey to or from a customer, that employee must also be regarded as working during that journey.
The CJEU felt that if the journeys between the employee’s homes and their first and last customer of the day were excluded from the meaning of working time, it would be contrary to the EU objective of protecting the health and safety of workers by guaranteeing minimum rest periods and maximum working time.
Implications for Irish Employers
It is important to note that the Tyco decision only refers to workers who do not have a fixed place of work and who travel each day between their home and customers’ premises on behalf of their employers. As a result, the decision will only affect employers who employ this type of mobile employee.
While the Irish courts are obliged to interpret Irish law in line with EU legislation and court rulings, it remains to be seen how the Tyco decision will be viewed by the Irish courts. If the decision is viewed in a broad manner, it is likely that employers would be required to pay their employees for the time spent travelling to and from work, which could greatly impact on the number of calls carried out in any given day. More importantly employers need to be more careful when arranging their employee’s working schedules as the time spent traveling to and from work will count towards the 48 hour maximum working week imposed by the Organisation of Working Time Act 1997.