On the 10th of September, the Court of Justice of the European Union (CJEU) ruling on Federación de Servicios Privados del CC.OO. v Tyco held that journeys made by workers without fixed places of work between their homes and their first and last customer of the day constitute working time. To help you assess whether your organisation may be affected by this decision, we would like to bring a few key points to your attention:
- This decision affects peripatetic workers, or workers without fixed places of work. Examples include door-to-door salesmen, plumbers or care workers.
- Workers who report to a fixed place of work before travelling on to their first destination of the day are not affected.
- Employees who work from home with occasional visits to the office are not affected, provided their employment contract specifies their home as their place of work.
The repercussions of the Tyco judgment remain to be seen. The initial reaction of many employers has been to focus on the additional cost to their business if travelling time has to be incorporated into workers' current working hours, thereby reducing the time spent in productive working.
However, this is a health and safety decision geared towards ensuring that workers have adequate rest breaks. In theory workers can be required to work in the same way they currently do for the same pay, provided statutory rest breaks are adhered to, and provided that relevant opt outs of the 48 hour week have been obtained. Changing contracts of existing workers may be required to put this into effect, depending on how they are currently drafted.
This may become a pay issue if the additional time travelling from home would take the average hourly rate paid below the national minimum wage level, but this is not clear. There are already Tribunal cases currently being brought by care workers on the basis that travel time between appointments should be paid. It seems possible claimants may seek to assert that travel time from home should also be included (and should have been to date) notwithstanding the fact that the National Minimum Wage Regulations expressly exclude travelling to and from work from the calculation. The CJEU have expressly stated in the Tyco case that the principles of the Working Time Directive do not apply to the remuneration of workers. However it will be interesting to see if the Tribunals seek to take account of the reasoning in Tyco in wages claims, despite the fact that the NMW Regulations are purely domestic and relate to pay as opposed to health and safety issues.