The Advocate General in the European Court of Justice (ECJ) has given his opinion as to whether time spent by peripatetic workers travelling from home to their first assignment of the day, and travelling from their last assignment of the day back home, should count as working time for the purposes of the Working Time Directive, in the case of Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another (Case C–266/14).
Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SA (the companies) employed technicians to install and maintain security equipment in homes and in industrial and commercial premises located within the geographical area assigned to them. These staff were peripatetic workers (ie workers without a fixed or habitual place of work), who travelled between customers designated by their employer. The distance between a customer's premises and a worker’s home varied significantly but was sometimes over 100 kilometres.
The companies did not treat the time spent travelling from a peripatetic employee’s home to his first assignment at the start of the working day as working time, nor did they treat time spent travelling from the last assignment of the day to his home as working time. The technicians brought a claim in the Spanish court through their union that their employer was in breach of working time legislation by failing to treat their time spent travelling to and from home as working time.
The Spanish court stayed the proceedings and referred a question to the ECJ as to whether, in the case of a peripatetic worker, time spent travelling at the beginning and end of the working day is working time for the purposes of the Working Time Directive.
The Advocate General (AG) has now given his opinion on this question. The AG’s opinion is not binding but is usually followed by the ECJ. While this is a Spanish case, the AG’s opinion is relevant to employers in Great Britain because the Working Time Regulations derive from the Working Time Directive.
Advocate General’s opinion
The AG noted that, under the Working Time Directive, the definition of “working time” has a number of elements, as it is any period in which:
- the worker is working;
- at the employer’s disposal; and
- carrying out his duties.
It is worth noting as an aside that in Great Britain the Working Time Regulations contain the same definition of working time, except that the definition also includes any period during which the worker is receiving relevant training and any additional period which is to be treated as working time under a relevant agreement.
The AG went on to consider whether each of the elements of the definition of working time was satisfied in the case of time spent by peripatetic workers travelling from home to their first assignment of the working day and from their last assignment of the working day back home. In his opinion these requirements were met for the reasons set out below.
The worker was working when making this journey, as travelling is an integral part of being a peripatetic worker. Similarly, the worker was carrying out his duties when making these journeys as in this case travelling was a necessary means of the worker providing his technical services to the customers designated by his employer.
The Spanish court had had more difficulty in determining whether the workers were at their employer’s disposal when travelling to and from home. However, in the AG’s opinion they were at their employer’s disposal at this time, since the travelling is done in the context of the hierarchical relationship that links them to their employer. The journeys and distances to be travelled depend on the employer’s wishes and the employer has the authority to require them to change the order of the customers visited or to visit an additional customer on the way home. As such, the AG considered that it was not only when peripatetic workers were at the job site that they were subject to the instructions of their employer.
The AG also noted that under the Working Time Directive, time is either working time or rest time and there is no grey area in between. The AG considered that it would not be appropriate to treat this travelling time as rest time and to do so would undermine peripatetic workers’ entitlement to rest breaks.
While a concern had been expressed that workers would take advantage of the journeys at the beginning and end of their working day to carry out their personal business, the AG considered that it was up to the employer to put in place the necessary monitoring procedures to avoid any abuse.
The AG’s opinion is not legally binding and it is open to the ECJ to come to a different conclusion but the ECJ usually follows the AG’s opinion when making its decision, which is expected later this year. If the outcome is as expected, the decision will have an impact on sectors that use peripatetic workers, such as the care sector.
In the meantime, if you engage peripatetic workers you should carefully review your working practices for those staff, in particular in relation to working time and rest breaks, to ensure that you are not in breach of working time legislation.