A ruling of the European Court of Justice (ECJ) on working time could have important practical implications for employers. The case involved is an illustrative tale of our times – of how technology and the restructurings prompted by the Great Crash of 2008, changed working practices and in turn, led to some unexpected consequences of the application of employee protection/ workplace safety law in a changing world.
Answer - and - So What?
The Advocate General (AG) has ruled that for field or peripatetic workers (that is, who have no fixed base) their journeys to/from home at the beginning and end of the day count as working time. This is a Working Time Directive (WTD) case, brought in connection with the Spanish equivalent of the UK Working Time Regulations (WTR).
If the Court agrees with the AG, employers are potentially in breach of their WTR obligations e.g. 48 hour maximum week, daily and weekly rest periods and perhaps also night work and young workers restrictions. There could be liability for past or current practices but probably, of greater concern, is the impact in terms of staff utilization/resource scheduling and pressure to take account of this "dead" time in pay and reward discussions.
For example, if a home based mobile engineer leaves their last customer job in Leeds at 6:30pm and arrives home at 8:00pm the restriction on daily rest means that they cannot start working (in other words driving to the next customer site) for at least 11 hours – 7:00am as opposed to 5:30am. This could pose real challenges for those scheduling service delivery and aligning efficient use of resources accordingly. Also, the engineer (or their union) may refer to their contract/collective agreement and insist on being paid for this time as the AG believes it is working time, albeit for WTR purposes.
Employers should consider the possible impact of the case on their delivery model, resource costs and workforce planning. The response will vary from each organisation. There are important exceptions and relaxations for certain sectors (e.g. civil aviation, road transport) and types of workers (e.g. utility, tourism and rail workers), which are outlined further below under Details.
The main WTR battleground politically has been the UK's insistence on maintaining, in the face of EU pressure, the ability for employees to opt out of the 48 hour week restriction. More recently, the WTR has caused UK employers major angst in its rulings that holiday pay should, essentially, reflect normal pay (and therefore arguably include commission, shift allowances, productivity bonuses, at least certain types of overtime etc.).This uncertainty continues and the latest case, from an operational point of view at least has the potential to turn into "Holiday Pay #2" (or perhaps PPI for claimant HR lawyers).
So, what's the Issue?
The WTD lays down restrictions on working hours, the key restrictions being a maximum weekly working time (48 and 40 for young workers), weekly rest (a continuous 24 hours once a week), daily rest (continuous 11 hours in every 24) and rest breaks (20 minutes for each 6 hours' work). In the UK, the WTD is given effect by the WTR.
In addition to employee remedies in the Employment Tribunals and potentially civil courts for breach of WTR, certain aspects of the WTR contain criminal sanctions. Of course, good employers and responsible business would always strive to comply with such regulations but some may have been caught off guard by this latest development of European driven safety and health legislation in the workplace.
What is Working Time?
When establishing if employers are complying with the law, the definition of working time is, of course, fundamental. The WTR (reflecting almost word for word) the WTD provides that working time is where a worker (W):
- is working;
- at the employer's disposal; and
- carrying out his activity or duties.
What is NOT Working Time?
The WTD/WTR is binary in the sense that any time which is NOT working time IS rest time.
WTD/WTR provide that the strict limits on night work, daily/weekly rest and rest breaks and the 48 hour week can be relaxed (where compensatory rest is provided) where W's home and work place or his/her different places of work are distant from one another. This is widely understood as meaning that "normal commuting" time for those with a fixed work place or places is not counted as working time. This aspect may be where the full EC or later cases in the UK and beyond may take some issue with the AG's opinion.
Safety and 'Elf, innit?
It is important to note that WTD/WTR are safety and health measures. They are concerned with the welfare of workers and those affected by their activities. They are not concerned with optimal organisational efficiencies and this purpose has consistently been emphasised by the Courts/Tribunals.
Sign of the Times
In the Tyco case, the Spanish engineers (W) had a territory to cover as is common practice with field based employees. They had no base – they simply visited customer sites as directed by Tyco. At least weekly the W had to collect from a logistics hub materials and equipment for the relevant jobs. Tyco argued, essentially, that the time spent travelling from home to the first customer site or job of the day and to home following the final job of each day was NOT working time. The trips from job to/from home could often be over 100km, so if classed as working time, added substantially to the working day.
Post financial crisis, Tyco had revised the model and closed regional centres at which the engineers had previously been based, taking their directions and equipment in the traditional way. W would collect their vehicle, kit and schedule from the regional hub and do the reverse at the end of the day. Technology came along and the Ws had their roster, directions etc. sent to their Blackberries (other smart phones are available) on which they recorded their time and other information and communicated with Madrid head office. Notably, in the pretech world, Tyco counted working time as starting when W left the regional centre and ending when they dropped their vehicle each evening.
The AG's opinion is not binding on the full ECJ which is expected to deliver judgment later in 2015. The full court typically but not always follow the AG. The AG is the same person who sat in the case of Lock v British Gas (holiday pay to include commission), so he is not afraid of advancing (in the UK at least) controversial opinions.
The AG focussed on the aspects of control over W (driving to places/schedules directed by the employer and in vehicles designated by the employer), the absence of choice for W and that travelling to customers was an integral part of the job.
The AG clarified that there were no grey areas – working time is not rest time and vice versa and drew on cases on the Road Transport Directive (Skills Motor Coaches), that a driver who collects the vehicle from an ordained pick up point (not the main centre) was working.
In delivering his opinion, the AG balanced the rights of the employer noting that it had benefited (in efficiency savings) from the tech driven manner of working and could therefore be expected to share the burden of compliance.
What's the Risk
In terms of risk, for most of the WTR rights, they are enforceable in the ET with a typical 3 month period to bring a claim. The ET can extend the time period (and may well as do so where the claim was not apparent) and award just and equitable compensation (uncapped). The 48 hour limit may well be enforceable by workers in the county/high courts as a breach of contract claim in England and Wales. Perhaps most worryingly for employers, the 48 hour week and length of night work (and certain other WTR aspects) are enforceable as criminal offences. Whilst one would hope that enforcement agencies such as HSE would take an understanding approach to accidental potential breaches, prudent employers will be reviewing their position to determine the risks. There will be cases at the margin where, e.g., who is a peripatetic worker and who merely an "ordinary" commuter is not obvious.
Whilst, this case concerns only working time – there being separate (and complex) rules regarding National Minimum Wage, one can expect employees and their representatives to rely on the case in support of pay for time which has not historically been considered working time - a prime example being domestic care workers on the minimum wage. Employers would be well advised therefore to adopt a holistic approach to pay and resourcing strategy, mindful of the potential implications of this case.
As mentioned above, the WTR and WTD contain a number of important exclusions and exceptions such as sectors, types of worker and certain circumstances (e.g. unusual and unforeseeable events). It will be important to obtain specific advice and assess the impact on your organisation. This could range from negligible to very substantial if the AG's opinion is adopted.