Peripatetic workers' travel time to first and last customers of the day is 'working time'

Federacion de Servicios Privados del sindicato Comisiones Oberas v Tyco Integrated Security SL and another (c-266/14)

Background

Neither the Working Time Directive or the Working Time Regulations state whether travel to and from a place of work, or between places of work, should be considered working time. 

Non-statutory guidance on gov.uk states that 'time spent travelling for workers who have to travel as part of their job e.g. travelling sales reps or 24 hour plumbers' is included in working time, but that 'normal travel to and from work' and 'travelling outside of normal working hours' are not. 

Facts

Tyco Integrated Security SL, and another company ('the companies'), were security system installation and maintenance companies within the same group, each employing around 75 technicians. The technicians were originally assigned to a particular area of Spain but, following the closure of the provincial offices, all the employees were assigned to the central office in Madrid.

Each technician used a company vehicle to travel from their homes to the places where they carried out installation or maintenance, and home again at the end of the day. The distances from their homes to their assignments varied, and were sometimes more than 100km. Their assignments for the forthcoming day were communicated by an application on a mobile phone.

The companies did not regard the first journey of the day (from home to the first assignment), or the last journey of the day (from the last assignment to home) as working time. The working day was calculated as starting from the time the technician arrived at their first assignment, and ending when they left their last assignment. 

The technicians brought a complaint in a Spanish court that the companies were breaching the Spanish working time rules by not including the time spent on their first and last journey of the day. The Spanish court referred the question to the ECJ, namely whether the time spent travelling at the beginning and end of the day by a peripatetic worker (one who is not assigned to a fixed place of work) constitutes 'working time' or a 'rest period'. 

Advocate General's Opinion

The Advocate General considered that the first and last journeys of the day should be classified as working time. He said that the three criteria of working time, as set out under Article 2 of the Directive, were satisfied:

  • Travelling is an integral part of being a peripatetic worker. When such workers use a means of transport to go to a customer designated by their employer, they must be considered to be 'at work';
  • The journeys are subject to the authority of the employer, in that it could choose to change the order of customers or cancel an appointment, or require the workers to call on additional customers on their journey home. The workers were therefore 'at the disposal of the employer';
  • Since the workers' travel is inherent in the performance of their activities, it must be regarded as forming part of the 'activity or duties' of those workers.

Decision of the European Court of Justice ('ECJ')

The ECJ agreed with the Advocate General that the three aspects of 'working time' had been satisfied.

It concurred that it was relevant that the first and last journeys of the day to customers were regarded as working time before the regional offices had been abolished. The nature of those journeys did not change, only the departure points. Therefore, these workers must be regarded as carrying out their activity or duties during the time spent travelling to and from customers. 

Further, although the workers were free to choose the route between their home and first or last assignment of the day, the companies were able to change the order of the customers or cancel appointments at any time. The workers were not able to use their travelling time freely, or pursue their own interests during that time. Consequently, they were 'at their employer's disposal'.

Finally, the ECJ stated that, if a worker does not have a fixed place of work, and is carrying out their duties on journeys to and from their customers, that worker must be regarded as working on that journey. The fact that those journeys might start and finish at the worker's home is irrelevant. It was simply a consequence of the companies deciding to abolish regional offices. Having lost the ability to determine the distance between their homes and the usual location of the start and end to their working day, the technicians could not be required to bear the burden of their employer's choice to close the regional offices. 

Tips for Employers

The decision of the ECJ closely follows the Advocate General's opinion and provides clarity for employers in respect of what constitutes 'working time' for peripatetic staff.

Law Society publishes proposals for Employment Tribunal reform

The Law Society has published a discussion paper setting out proposals for reforming Employment Tribunals. The document is based on work carried out by the Employment Law Committee, and suggests a single jurisdiction consisting of four levels. Straightforward matters would be dealt with at Level 1, and based on the papers submitted by the parties. Complex and high value claims would be dealt with at Level 4. 

The paper provides details of how to respond to the proposals, the deadline for which is 30 October 2015.

Read the paper