In an update to a case we first alerted you to in July 2015, the European Court of Justice (ECJ) has held that, for workers who do not have a fixed or habitual place of work, time spent travelling between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’ within the meaning of the EU Working Time Directive. The fact that those journeys start and finish at the worker's home is irrelevant.
This follows the non-binding opinion of the Advocate General issued earlier this year.
Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA Case C 266/14 ECJ
Previously, the general rule was that time spent travelling to and from work did not fall within the definition of ‘working time’. However, the case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA Case C 266/14 ECJ has fundamentally changed the legal position.
The case involves two security system companies whose workers are required to travel to different customers’ premises in order to install and maintain security equipment. Each worker is provided with a company vehicle and allocated a geographical area in which to operate. The extent of travel varies daily but could be over 100km.
The ECJ held that it would be wrong for the company not to count as ‘working time’ the period spent travelling to and from the premises of their first and last customer of the day. In order for the workers to fulfil their role, it is incumbent on them to drive between various customers’ premises, and while doing so they are at the disposal of their employers and the travel forms part of the worker’s duties. This clearly meets the definition of ‘working time’ in the Directive.
The Directive does not provide for an intermediate category between 'working time' and 'rest', so all time must be classified as one or the other.
Even if the workers were free to choose their own route, their travelling time could not be shortened, nor used freely by the workers for their own interests, and therefore the workers are at the disposal of the company during such travel time.
It was argued by the company that the travelling time was a ‘rest period’ as opposed to working time, as the workers were not actually carrying out any installations or maintenance during those periods. The ECJ disagreed and was of the view that this interpretation would ‘jeopardise the objective of protecting the safety and health of workers’. Furthermore, given that travelling is an integral part of being a worker without a fixed or habitual place of work, it cannot be said that the ‘place of work’ is restricted to actual work on customers’ premises.
Whilst this case gives businesses clarity in defining working time for mobile workers with no fixed workplace, a potentially wide ranging class of workers could now fall within this category. By way of example, gas and electricity service engineers, sales reps, couriers and those working in the care sector, may all be required to travel to different customers’ premises, designated by their employers, which going forward will be considered an integral and obligatory part of their job.
Employers will now have to implement new systems to ensure that working time is properly recorded and the rules regarding rest periods are satisfied and, furthermore, that staff are properly remunerated for the time they spend travelling to their first job of the day and home from their last. Failing to do so could result in claims from disgruntled employees.