It is often convenient and efficient for mobile workers to travel directly from home to their first customer each day, return directly home from their last customer, and not to be assigned to a fixed or habitual place of work. Examples in the construction sector include workers who provide O&M services on a number of sites or consultants or specialist subcontractors who may be working on more than one job at a time.
A recent European case has looked at whether the time spent by these “peripatetic workers” travelling to and from their first and last jobs of the day should count as “working time” under the EU Working Time Directive (Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another). The Advocate General (AG) at the European Court of Justice (ECJ) has given his Opinion that this time does constitute working time.
An Opinion from the AG is not, in itself, binding. It acts as guidance to the ECJ, who will proceed to issue a judgment. Usually, the ECJ follows the AG’s Opinion.
The AG’s reasoning is based on the travel in question forming an integral part of the work and being a necessary means of providing services to customers. It should therefore be regarded as forming part of the workers’ activities.
The AG did acknowledge the employer’s concern that workers would take advantage of the journeys at the beginning and end of their day to carry out their personal business, but made it clear that this does not affect the nature of the journey time. It is therefore up to individual employers to put in place appropriate monitoring procedures and policies to prevent any such abuse. While this might increase the administrative burden on employers, this will simply be something businesses need to weigh into the equation when deciding to have or maintain no fixed place of work in the first place. Employers with a mobile workforce who travel between sites or customers during the course of their working day ought to consider the potential for abuse when workers are travelling in between sites or appointments in any event.
Perhaps more significantly, the AG’s Opinion may have a knock on effect on a business’ compliance with its obligations under the Working Time Regulations 1998 (the Regulations). For example, it could increase an employee’s total average working time each week, resulting in the employee exceeding the 48 hour limit imposed by the Regulations (unless the employee has opted out of this limit) as well as any time restrictions contained in the employee’s contract of employment. In addition, employers need to consider whether employees are able to take the daily and weekly rest periods to which they are entitled under the Regulations.
In the event that the ECJ follows the AG’s Opinion, employers will need to check their compliance with the Regulations and review their employment contracts. However, given the underlying rationale for the Regulations and the duty of care otherwise placed on employers, businesses should ensure that they take into account the time spent driving by their employees from a health and safety perspective, regardless of this decision.