Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another(C-266/14)
Travelling time that workers (who are not assigned to a fixed or habitual place of work) spend travelling from home to their first customer, and from the last customer back to their homes, counts as ‘working time’ for the purposes of Article 2 of the Working Time Directive (the Directive). This defines “working time” as any period during which the worker is working, is at the employer’s disposal and is carrying out his activity or duties, in accordance with national laws and/or practice. It defines “rest period” as meaning any period which is not working time. The Directive is implemented in Great Britain via the Working Time Regulations 1998 (WTR).
Neither the Directive nor the WTR say anything about whether travel to and from a place of work or between places of work should be considered as working time.
In this case, the ECJ was asked to consider whether time spent travelling to and from the first and last customers of the day and the worker’s home was working time when they did not have a fixed place of work.
The companies (together “Tyco”), are security system installation and maintenance companies each employing around 75 technicians who are assigned to a particular province or area of Spain. In 2011, the companies closed their provincial offices, and assigned all their employees to their central office in Madrid.
Each technician uses a company vehicle to travel from their homes to the customers’ sites, and then to return home at the end of the day. The distances from their home to their assignments vary, and are sometimes more than 100 km. They receive details of their assignments via a mobile phone app, which shows them a task list for the day. Tyco do 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, but as rest time. They therefore calculate the working day as starting from the arrival of the technician at their first assignment, and ending when they leave their last assignment. Before the provincial offices were closed, Tyco calculated working time as starting when a technician arrived at the office to pick up the vehicle and task list, and finishing when they arrived back at that office to drop the vehicle off.
The technicians brought a complaint through their union that Tyco were breaching the working time rules by not including their first and last journey of the day. The Spanish court noted that the Directive refers only to either working time or rest time. There is no provision for situations falling between the two.
Under Spanish national law, time spent travelling between a worker’s home and workplace is not working time, since a worker can choose how far away from work to live. However, these workers have no fixed place of work and cannot choose the order in which they visit the customers. The Spanish court stayed proceedings, and referred a question to the ECJ as to whether the time spent travelling at the beginning and end of the day by a peripatetic worker constitutes “working time”.
The Advocate General held that in his opinion, the worker was at work, at the employer’s disposal, and carrying out his or her duties when travelling to and from the first and last customers of the day. Accordingly, this should be considered working time.
The ECJ agreed, holding that for workers without a fixed work place, travel to the first and from the last customer of the day should be working time under the Directive, since their commuting time was a necessary means of providing their services to customers.
When such workers travel to a customer designated by their employer, they must be considered to be “at work”. The travel is inherent in the performance of their activities, and is necessary in order for them to provide their technical services to customers.
The journeys are subject to the authority of the employer. The employer could, using the mobile app, change the order in which customers should be visited, cancel appointments or order a visit to another site whilst the worker was travelling home. The workers are therefore at the employer’s disposal for the purposes of the Directive. The time spent by workers travelling from their homes to the first customer and from the last customer to their homes must be considered “working time”.
What to take away
The WTR contain the same definition of working time as in the Directive, so UK tribunals and courts must now apply this ruling. The majority of workers have a fixed workplace, and the case will not affect them. There is no general right to be paid for the journey to work, however long it may take.
The decision affects how maximum weekly working hours and rest break entitlements should be calculated for mobile workers, and will have greater effect on those working a distance from their usual territory, or who are required to travel large distances in the course of their work. This will mean, unless the employee has signed an opt out, that there are fewer hours available to spend with clients or doing other types of work. However, the decision does not mean that workers will necessarily receive more pay. The ECJsaid that the decision does not oblige employers to pay staff for extra commuting. However, for hourly paid workers, or those who pay overtime, it may count as additional paid time depending on the terms of the contract. Employers could agree a lower rate of pay for travelling time than other working time. The National Minimum Wage Act 1988 does not apply to travelling time between home and a place of work.
Employers who are concerned about the ruling should:
- monitor travelling working time for mobile workers to ensure there is no breach of the Working Time Regulations;
- ask employees to sign opt-outs
- ensure there is no breach of the Working Time Regulations and reduce their working hours if necessary if the worker does not sign an opt out. Workers are entitled not to be dismissed or subjected to any detriment if they do not sign an opt out, or choose to opt back in at a later date.
- check all mobile workers can take at least 11 hours’ rest between getting home at night and setting off again. However, workers can waive this right and employers are not under a strict obligation to enforce rest periods, or work can be required provided that compensatory rest is offered later.
Employers may also consider assigning mobile workers to a fixed base to which they must travel before starting work, and where they must “clock off” at the end of the day. If they have a fixed base, as the employees in this case did before the company took the decision to close the regional offices, they will not be covered. Where possible, mobile workers’ commuting time can be limited by sensible planning – making visits to the clients nearest home as the first and last appointments of the day.