The ECJ has held that where workers do not have a fixed or habitual place of work the time they spend commuting between home and work assignments will constitute working time for the purposes of the Working Time Directive (Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another).
The Working Time Directive 2003/88 (WTD) regulates the organisation of working time, for example, specifying when rest breaks should be given and the maximum number of hours that can be worked per week. Importantly, the WTD does not regulate payment for working time, except for holidays, where it says that workers must receive their normal pay. In the UK, the WTD is implemented by the Working Time Regulations 1998 (WTR).
Under the WTD, "working time" is defined as any period during which the worker:
- carries out his activities or duties;
- is at the employer's disposal; and
- is working.
A "rest period" is defined as any period which is not working time.
Tyco's business was the installation and maintenance of security systems across Spain. In 2011 Tyco closed its regional offices and attached all of its employees to it central office in Madrid. Tyco employed technicians who were required to install and work on equipment in domestic, industrial and commercial premises falling within an assigned geographical area. The technicians had the use of a company vehicle to travel to and from their homes to their assignments each day. The distances from their homes to the assignments varied and could exceed 100 kilometres. The technicians were notified of their job list the night before they were expected to carry out the assignments.
Tyco's view was that the technicians' "working time" began when they arrived at their first assignment and ended when they left their last assignment. All time spent travelling between different assignments was treated as working time. However, Tyco did not regard the time spent travelling between home and assignments (i.e. the first and last journeys of the day) as working time, instead treating it as a rest period.
The technicians were aggrieved at Tyco's approach, particularly in light of the fact that before the closure of the regional offices, Tyco had treated working time as starting when the technicians arrived at the regional office to collect their vehicle and ended when they returned the vehicle. This meant that the technicians' journeys to and from their first and last customers was counted as working time.
Under Spanish law, commuting time was not, on the whole, regarded as working time. This was on the basis that workers choose where to live and, therefore, decide the length of their commute. However, an exception was made for mobile workers in the road transport sector on the basis that their vehicle was their workplace and so travelling time should be working time.
The Spanish Court asked the ECJ whether an exception to the general rule should also be made for workers in the same position as Tyco's technicians. The rationale for an exception would be that the workers were only told the night before where to travel and what route to use. This meant that their choice of residence did not dictate the length of their daily commute, which could vary considerably and at short notice. The difficulty was whether it could truly be said that the technicians were "at the employer's disposal" when they were travelling.
The Court considered whether the definition of working time was satisfied:
Carrying out activities or duties
Tyco argued that the commuting time could not be working time on the basis that the activities and duties of the technicians meant the installation and maintenance of security systems at customer premises. The time spent travelling to the customer premises was not time when they were carrying out such activities or duties and, therefore, should be excluded.
The Court rejected this argument, noting that the technicians' journeys to the customer premises was a "necessary means" of providing their technical services to those customers. Excluding these journeys would distort the concept of working time and jeopardise the health and safety of the workers.
It was also relevant that before the closure of the regional offices, travel time to the customer premises had been counted as working time. The Court noted that the nature of the journeys had not changed since the closure of the regional offices (i.e. it was still a journey to the customer premises). The only change had been the departure point (i.e. now the worker's home instead of the regional office).
At the employer's disposal
Here, the Court noted in order to be regarded as at the disposal of the employer, the worker must be in a situation in which he is legally obliged to obey the instructions of his employer and carry out activities for the employer. By contrast, if a worker can manage their time without such constraints, and is free to pursue their own interests, then they should not be regarded as being at their employer's disposal.
Whilst the Court accepted that the technicians were free to choose the precise routes to reach their designated appointments, they were still legally obliged to obey Tyco's instructions to attend a certain customer by a certain time. It was also relevant that Tyco could cancel, add, or change the order of, appointments. The Court concluded that during this necessary travelling time the technicians could not use their time freely and pursue their own interests. Accordingly, they were at Tyco's disposal.
The Court pointed out that if employers were concerned that workers would use such time to conduct their own personal business, then they should be in place monitoring procedures to avoid potential abuse. Although such measures would place a burden on Tyco, this was a consequence of its decision to close the regional offices.
The Court held that where workers use a company vehicle to:
- go from their homes to the premises of a customer designated by the employer;
- return to their homes from the premises of a customer designated by their employer; and/or
- go from the premises of one customer to another during their working day,
those workers must be regarded as "working" when making those journeys.
Whilst this is an important decision, it is of limited impact. It will only benefit those workers who have no fixed or habitual place of work. Further, even where commuting time is to be counted as working time, this decision only affects the organisation of working time (e.g. the additional time will need to be counted for the purposes of calculating when a rest break is due). The Court stressed that the WTD does not regulate the payment of working time (save for holidays). Instead, this is a matter for Member States to deal with at a national level.
In the UK, workers' pay is regulated by the national minimum wage legislation and the individual contract of employment. Broadly, the National Minimum Wage Regulations 2015 exclude commuting time. Regulations 27 and 34 provide that commuting time is not counted for the purposes of calculating time for which the national minimum wage must be paid to either salaried workers or workers paid according to the amount of time worked (i.e. time workers). However, regulation 39 sets out a different approach for "output workers" (i.e. workers paid according to their productivity, such as pieceworkers). Whilst commuting time between home and place of work will not usually count, if the worker works from home then any time spent travelling between home and any place they have to report to should be treated as time for which the national minimum wage should be paid.
The majority of workers will fall into the salaried or time worker categories, meaning that the national minimum wage will not usually be payable for commuting time. However, employers should still consider the wording used in the individual's contract of employment. For example, if it were stated that the worker is to be paid for "all working time" then there would be a strong argument that such workers are contractually entitled to be paid for their commuting time.
Yet even where there is no statutory or contractual obligation to pay for such commuting time, the risk for employers is that workers will apply pressure to achieve a pay increase for the additional working time. For example, pressure could be applied by way of the termination of agreements to "opt out" of the maximum 48-hour working week under the WTD. When commuting time is taken into account, this could severely restrict the remaining time available for work each week.