Yes, according to the Advocate General in Federacion de Servicios Privados v Tyco Integrated Security but only for peripatetic employees with no fixed or regular workplace. If this opinion is followed by the European Court of Justice (as is normally the case) employers will have to include travel to the first and from the last customer of the day in their calculations of working time. This could have a knock-on effect on pay breaks and maximum working hours.
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The current UK position
The Working Time Directive 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. A ‘rest period’ means any period which is not working time.
Neither the Directive nor the Working Time Regulations (which implement the Directive in the UK) say anything about whether travel to and from a place of work or between places of work should be counted as working time. Non-statutory guidance from the UK Government suggests 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.
Background to the case
This case involved Spanish workers who had to travel between clients as part of their jobs which involved installing and maintaining security alarms. They were each assigned different regions and could travel up to 100km to reach customers. Time spent travelling from and to their provincial offices at the beginning and end of the working day was counted as working time.
As a result of a reorganisation (and the closing down of all of the provincial offices), the workers no longer had a base. Instead, they had to travel from home to work and respond to mobile phone messages which told them, in advance, what route to travel and the work that they had to do. The business treated travelling from home to the first customer of the day and returning home at the end of the day as ‘rest time’.
Under Spanish national law, time spent travelling between a worker's home and workplace is not normally considered to be working time because a worker is free to choose where to live, and therefore to decide how far they live from the workplace. The Spanish court felt that this argument did not apply to these workers because they had no fixed workplace. The court referred the issue of what constitutes working time to the ECJ.
Opinion of the ECJ
The Advocate General said that the following three criteria must be satisfied in order for time spent travelling to count as working time. The workers must be:
- At the workplace;
- At the disposal of the employer; and
- Carrying out their activity or duties.
The Advocate General viewed travelling as an integral part of being a peripatetic worker and, as such, part of the activity or duties of those workers. The most difficult criterion to determine was whether the workers could be said to be at the disposal of their employer during the first and last journeys of the day. The Advocate General considered that these journeys were still subject to the authority of the employer because it could choose to change the order of customers or cancel an appointment, or require workers to call on an additional customer on their journey home.
What happens next?
Opinions of the Advocate General are not binding on the ECJ but they are often followed. A final decision is expected within the next few months.
Will this impact on the amount of pay workers are entitled to receive in the UK?
If travelling time at the beginning and end of the day has to be counted as working time, employers must ensure that adequate rest breaks are taken and, if necessary, ask the employee to sign an ‘opt out’ agreement from the maximum 48 hour working week.
Under the National Minimum Wage Regulations time spent travelling to and from home will not usually count as working time and will not have to be paid or taken into account to determine whether the NMW threshold has been met. Employers may, however, face requests from hourly paid workers to be paid for travelling time.