The ECJ has handed down judgment today in Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, a working time decision. The ECJ held that the journeys made by workers without fixed or habitual place of work between their homes and the first and last customer of the day constitute working time.
In this Spanish case, the employer carried out a business installing and maintaining security systems. The company’s technicians installed and maintained security systems in homes and on industrial and commercial premises within the geographical area assigned to them. The workers had use of a company vehicle for travelling to and from home to the first and last customer of the day, as well as between customers during the working day. Their work was coordinated by a central office in Madrid. The workers also travelled to pick up parts and equipment to the offices of a transport logistics company near their home. The company calculated the technicians’ working time as starting when they arrived at their first customer and ending when they left their last customer. Time spent travelling to and from the first and last customers to home was counted as a rest period.
In the case of workers with a fixed place of employment, it is established law that travel to and from the workplace is not working time. The Spanish court made a reference to the ECJ to determine the position in respect of workers with no fixed place of work.
Following the opinion of the Advocate General, the ECJ held that in circumstances where workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time.
The Court noted that ECJ case law has consistently defined any period during which the worker is at work, at the employer’s disposal and carrying out his or her activity or duties as ‘working time’. It agreed with the Advocate General that the workers’ journeys were a necessary means of providing their technical services to customers and that they had to be regarded as carrying out their activity or duties during that journey time. As the employer set the list and order of the customers for the workers to visit, and the appointment times, the workers were not free to use their travelling time as they pleased and so were at the employer’s disposal. Further, as travelling is an integral part of being a worker without a fixed or habitual place of work, it could not be said that their ‘place of work’ was restricted to the physical areas of their work on customers’ premises. Consequently the travelling time has to be regarded as ‘working time’ under the Directive.
This is likely to have significant implications for employers in the care sector in particular, where workers visit clients in their homes, but will also affect other businesses employing workers with no fixed base. The ECJ specifically rejected the UK Government’s argument that the conclusion in this case would lead to an inevitable increase in costs for the employer, suggesting that the employer remains free to determine the remuneration for time spent travelling between home and customers. Travel time to and from work is not currently counted as working time for the purposes of the National Minimum Wage and this position is not directly affected by this decision as minimum wage rates are a matter for national law. However, employers may face difficulties with complying with rules on rest breaks and the maximum working week which may lead to increased cost, and they are likely to face pressure to pay workers for this additional working time.