The claimant in East v Valentine was employed as a support worker assisting disabled persons in the community. He had to travel from place to place using his car. At the beginning of a period of work he would drive directly from his home to his first assignment, and when he had finished work he would drive directly home from his last assignment.
The European Court of Justice in Tyco in 2015 found that the time a peripatetic employee without a fixed base spends travelling to and from his first and last place of work each day should count as working time. The claimant argued that, based on Tyco, his own travel time constituted working time. The Employment Judge agreed, and went on to find that the employer had made an unlawful deduction from wages – he should have been paid for the travel time.
The problem was that the Judge had not considered the claimant's employment contract. It set out his working hours and pay and specifically stated that his working hours did not include time taken to travel from home to first place of work and from last place to home. It also included a detailed clause about payment for additional hours, specifying that they would generally be taken as time off in lieu and would only be paid in "exceptional circumstances".
The EAT held that the Tribunal's decision on unlawful deductions could not stand. The Working Time Regulations and European Directive are not concerned with questions of payment. A finding that a journey to or from a place of work is working time for the purposes of the Regulations and the Directive does not give rise to any statutory right to payment and, in this case, there was no room for any contractual entitlement, given the express terms relating to additional payment.
The EAT also commented on the recent issue of whether employment tribunals have jurisdiction to consider questions of contractual interpretation when determining unlawful deduction claims. One EAT case, Agarwal, had suggested they did not, but a later case, Weatherilt, did not follow this, relying on Court of Appeal authorities that had not been considered in Agarwal. The EAT said it preferred the approach in Weatherilt.