The Supreme Court recently held that the time which in-home carers spend travelling between their home and their first and last clients of the day cannot be considered working time.
The case affected 6,000 in-home carers who provided services to approximately 185,000 clients. The carers were covered by the Collective Bargaining Agreement (CBA) for Home Help Activity in force in Castile and Leon.
A trade union (UGT) filed a claim on behalf of the carers with the Castile and Leon High Court (the first-instance court in this case, since the CBA applied to the whole region), asking it to declare that the time that the carers spent travelling between their home and their first and last clients of the day must be deemed working time. Article 15 of the CBA established that such time was considered working time, unless agreed otherwise.
Notably, not all of the carers under the scope of the CBA rendered their services in a similar way and their work did not always have similar characteristics. For instance:
- some carers commenced their work at their company's premises, while others went directly to their clients' facilities;
- the clients normally changed on a daily basis; and
- some carers used their own vehicle, while others used a company car.
The Castile and Leon High Court overturned the suit at first instance. The trade union appealed this decision before the Supreme Court. The main argument for the appeal was the breach of European regulations and case law on the organisation of working time.
The Supreme Court overturned the appeal and ratified the Castile and Leon High Court's decision.
On the one hand, the Supreme Court considered that Article 15 of the CBA applied only to time spent travelling between client assignments (ie, the time spent travelling between clients outside the company premises). Therefore, Article 15 did not apply to the working time referred to by the trade union.
On the other hand, the Supreme Court held that European regulations – in particular, the case law involving Spanish security firm Tyco – did not apply to the case at hand and that, therefore, no breach of such doctrine existed.
In Tyco, the European Court of Justice held that the time that employees spent travelling between their home and their first and last clients of the day constituted working time. However, there were a number of essential elements which led the court to uphold the trade union's lawsuit in Tyco – for instance, the employees had no fixed or habitual place of work and the company provided them with a company car to carry out their work.
Based on the above, and considering that none of the circumstances on which the European Court of Justice had based its analysis in Tyco had been proved in the case at hand, the Supreme Court concluded that this judicial precedent was not applicable.
In the final decision in this case, the Spanish public prosecutor concluded that the trade union's lawsuit must be overruled as:
- the Workers' Statute sets out that working time starts when a carer arrives at their place of work; and
- the CBA did not qualify the time spent travelling between the carers' homes and their first and last clients of the day as working time.
This is a controversial matter on which the Spanish labour courts have reached various conclusions depending on the case at issue.
For now, it seems that in order for the time that in-house carers spend travelling between their home and their clients' facilities to constitute working time, different key elements must be considered, including:
- whether the carer has a fixed or habitual place of work;
- how the services are provided and the material means for providing such services provided by the employer; and
- the distance between the carer's home and their clients' facilities.
In any case, employers should look out for further rulings from the Spanish or European courts on this matter, particularly where they interpret Article 35.4 of the Spanish Workers' Statute, which establishes when daily working time starts. Such decisions may have an important impact on the organisation of employers' activity and their employees' salaries.
For further information on this topic please contact César Navarro or Alejandro Gil at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (email@example.com or firstname.lastname@example.org). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.
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