In Federacion de Servicios Privados del sindicato Comisiones Obreras -v-Tyco Integrated Security SL (“Tyco”), the ECJ has followed the Advocate General’s Opinion issued in June 2015, holding that time spent by workers who do not have a fixed place of work on travelling between home and their first and last assignments of the day, counts as working time for the purposes of the Working Time Directive 2003.
The case concerned a group of workers who drove to customers throughout Spain installing security systems. Initially, they started their working day at one of Tyco’s regional offices but, after those offices were closed down, the workers were assigned to Tyco’s central office in Madrid. Thereafter, the technicians travelled from their homes in their company vehicles to their first assignment and returned home from their last assignment of the day, without visiting any premises of their employer. Tyco did not regard the first and last journey of the day, to and from the technicians’ homes, as “working time”. Before the regional offices were closed, working time was calculated as starting from when the technicians arrived at the office to pick up their company vehicle and list of assignments and ending when they arrived back at the office to drop the vehicle off.
The ECJ held that the definition of “working time” under the Working Time Directive 2003 had been satisfied:
- The workers must be regarded as carrying out their “activity or duties” during the time spent travelling to and from customers. The ECJ considered it to be relevant that the first and last journeys of the day to customers were regarded as working time before the regional offices were closed;
- The workers were “at the disposal of the employer” during the first and last journeys. Although they were free to choose the route between their home and first or last assignment of the day, Tyco could change the order of the customers or cancel appointments at any time and the workers would be obliged to obey such instructions;
- Travelling is an integral part of being a peripatetic worker and so, in the absence of a fixed place of work, they must be regarded as being “at work” during the time spent travelling to their customers’ premises. The fact that the journeys might start and finish at the worker’s home is irrelevant and was simply a consequence of Tyco’s decision to close the regional offices.
This decision affects all mobile workers who do not have a fixed place of work. It means that the travel time should be taken into account when calculating their working hours for the purposes of the 48-hour working week limit and rest breaks. In the absence of a valid opt-out, it could mean that employers are in breach of the Working Time Regulations 1998. It has been suggested that this could mean a pay increase for those on the national minimum wage as they will be treated as working more hours. However, the ECJ noted in its judgment that what workers are paid for travelling time is a matter for the national laws of member states and, under the National Minimum Wage Regulations 2015, travel from a worker’s home to their place of work or first assignment of the day does not qualify for the national minimum wage.