In its preliminary ruling (C-266/14), the Court of Justice of the European Union assessed what constitutes "working time" for employees without a fixed or habitual place of work. The court held that, in light of the circumstances of the case, the time spent travelling each day between the employees' homes and the premises of the first and last customers is to be regarded as working time.
The case involved two companies that install and maintain security systems. The employees' duties consisted of maintenance and installation work at the customers' premises. Before the companies closed down its regional offices, the time spent travelling from the regional offices to the customers and back was regarded as working time. After closing the regional offices, the employees drove directly from their homes to the customers. Under the new arrangement, the companies considered that working time began once the employee arrived at the first customer and ended when the employee left the last customer. The employees claimed that the time they spent on travelling between their homes and customers should count as working time.
In its judgment, the court assessed what constitutes working time in accordance with Article 2 of Directive 2003/88/EC (the "Working Time Directive"). The Working Time Directive defines working time as any period during which the employee is at work, at the employer's disposal and carrying out his activity or duties in accordance with national laws and/or practice. Any period which is not working time constitutes a rest period under the Working Time Directive.
The companies argued that the activity and duties of the employees entail providing technical services as well as installing and maintaining security systems for the customers. In the companies' view, since the employees are not performing their duties while travelling, such time is not working time. The companies also argued that the employees may pursue their own interests during the travelling time.
The court held that the journeys of the employees are necessary for providing technical services to the customers and thus an integral part of the employees' duties. Further, the routes are planned by the employer who may change the order of the customers and cancel or add an appointment. Therefore, the court held that the employees are at the employer's disposal and working during the journeys. The court further noted that closing down the regional offices led to a situation where the employees could no longer decide on the distance between their homes and the workplace. The court also considered that the companies should bear the costs of closing down the regional offices, including any costs for monitoring the journeys if they suspect any potential abuse of the travelling time for personal business. Thus, the court ruled that the travelling time in question is to be considered working time.
The ruling sheds light on how the working time should be calculated for employees without a fixed or habitual place of work. Under Finnish law, travelling time is not included as working time unless it simultaneously constitutes performance of work. Journeys from the employee's home to the workplace and back do not constitute working time. It remains to be seen if and how the ruling will affect the assessment of circumstances under which work-related travel may be deemed to constitute working time.
Comments from a Swedish perspective:
The Swedish Working Hours Act does not clearly define whether and under what circumstances travelling time may constitute working time. However, the general understanding is that, like in Finland, travelling time is not included as working time unless it simultaneously constitutes performance of work. Furthermore, collective bargaining agreements often contain working time regulations that deviate from the Act. It remains to be seen to what extent the ECJ's ruling will affect the assessment of circumstances under which work-related travel may be deemed to constitute working time under the Act and under the relevant collective bargaining agreements.