Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL is a case involving Spanish security system installers. Originally they had reported to a depot, then travelled from there to their first customer, returning to the depot at night before travelling home. Following a re-organisation, they travelled to their first place of work directly from their homes and went back to their homes in the evening from the last customer. The distances involved could be substantial, exceeding 100km in some cases. The question referred to the European Court was whether the employer should treat the travelling time to and from their homes as working time, in which case it could not be included in the calculation of rest time.
The Opinion of the Court's Advocate-General was that, under the Working Time Directive, time is either working time or rest time; there is no grey area in between. To be working time the employee has to be:
- at the workplace;
- under the direction of the employer; and
- carrying out his activities or duties.
In this case, all three requirements were met; 1 and 3 because, for a worker who does not have a fixed or habitual place of work, travelling is an essential part of the job; and 2 because the worker's routes and destinations were determined by the employer. Travel to the first customer, and back from the last, should be treated in the same way as travel between jobs.
The Opinion is not binding on the Court itself, which will decide the case later in the year, but it is followed more often than not. Our Working Time Regulations use the same definition of working time as in the Directive, so, assuming the Opinion is followed, we would expect tribunals here to take the same approach in the case of mobile workforces, or employees who work at a number of different locations but do not have a specific base. It remains the position, however, that travelling time to an employee's usual place of work would not normally be regarded as working time.