The time that mobile workers spend travelling from home to and from customers’ premises amounts to working time for the purposes of the Working Time Directive, according to the European Court of Justice (ECJ) in the case of Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL (C-266/14).
Tyco Integrated Security SL (Tyco) installs and maintains security equipment in Spain. In 2011 it closed its regional offices and attached all its employees to its central office in Madrid. Its workers used a company vehicle to travel each day from their homes to the place where they carried out work installing or maintaining security systems on site, returning home at the end of the day. Workers were sometimes required to travel 100 kilometres to the place of work and the journey could take anything up to three hours, depending on the volume of traffic.
The Working Time Directive recognises two types of time: working time and rest time.
- Working time is any period in which the worker is working, at the employer’s disposal and carrying out his activity or duties; and
- Rest time is any period which is not working time.
The ECJ in Tyco noted that there was no middle ground and that it had to decide whether the time spent by Tyco workers travelling to customers’ premises to and from home was working time or rest time. Previously, travel time to and from work was not considered to be working time on the basis that a worker is free to choose where to have his home and to decide on the distance between his place of work and his home (although there is a limited exception for mobile workers in the transport sector, where the workplace location is determined by the location of the vehicle).
The fact that Tyco’s workers were directed where to go, and indeed what route to take, prompted the ECJ to conclude that the arrangements took away their ability to arrange their private life, taking into account the proximity of their home to their place of work. This time could not therefore be regarded as rest time but did satisfy the definition of working time.
This ruling relates to workers with no fixed or habitual work location and is likely to affect sales representatives, skilled technicians and care workers, together with others who are required to visit different locations as part of their duties and use their home as their base for doing so.
A concern was raised in the Tyco case that the decision reached could lead to an increased wage bill for affected employers. In practice this will depend on the worker’s contractual terms, which should be checked if there is any concern about the possibility that a worker may be contractually entitled to be paid for the time that would now be classed as working time.
Travel from a worker’s home to place of work or assignment does not qualify for the national minimum wage according to the National Minimum Wage Regulations 2015. However, the Tyco decision arguably involves the development of an inconsistency in approach between the legislation governing working time and that governing the minimum wage. It may be only a matter of time before a worker who is required to travel a significant distance to complete work and is paid the national minimum wage calls into question the application of the national minimum wage legislation in light of the new position on working time following Tyco.
The Tyco decision will undoubtedly create a further challenge for employers in respect of the control and monitoring of a mobile worker’s working time, and a mobile worker’s activities at the beginning and end of the working day. There is potential for issues to arise concerning the question of whether workers have behaved appropriately during what is now classed as working time, and a need to ensure that there is no breach of the Working Time Regulations. In particular, employers will need to check that a worker is not working more than the maximum working week and is taking the relevant rest breaks. Employers may wish to obtain an opt out from relevant workers in respect of the maximum working week.