The Court of Justice of the European Union (ECJ) has previously confirmed that, where a worker does not have a fixed place of work, the time spent travelling from their home to the first place of work of the day, and from the last place of work back to their home, is ‘working time’ for the purposes of the Working Time Directive (Federacion de Servicios Privados del sindicato Comisiones Obreras -v- Tyco Integrated Security SL and another (c-266/14)).

The EAT recently considered whether workers falling within this principle were entitled to pay for that time (i.e. for their first and last journeys of the day) and held that the employer is free to determine the amount of remuneration an employee should receive for that travelling time.

The worker, V, was a support worker for a charity which assisted disabled people in the community. V used his own car to travel to assignments and his contract provided that he would be paid for an annualised number of hours each year, which did not include his travel from his home to his first assignment, or from his last assignment to return home each day. The contract also provided that time off in lieu would be granted for hours worked in excess of the annualised hours.

Following the ECJ's decision in Tyco, V claimed that his travel to his first job each day, and from his last job to his home, was now working time. V sought time off in lieu for that travel time under the contractual provisions regarding excess hours. V also claimed mileage expenses ‘if appropriate’. Crucially, he did not claim that the failure to pay him for those hours amounted to an unlawful deduction from his wages. The employment tribunal held that V's travelling time had been ‘working time’ and went on to hold that the employer had made unlawful deductions from V's wages by failing to pay him properly for his travelling time.

The EAT allowed the employer's appeal. The EAT held that the tribunal had been wrong to find that the employer had made unlawful deductions from V's pay when this was not a claim advanced by V. In any event, there had been no unlawful deductions from wages in this case. It was clear from V's contract that he had no entitlement to payment of wages in respect of time spent travelling to the first place of work and from the last place of work.

The EAT noted that the ECJ had made it clear in Tyco that the Working Time Directive is not generally concerned with questions of payment for working time. As such, the employer was free to determine the amount of remuneration an employee should receive for their travelling time. The contract had clearly set out that no payment would be made for travelling time.

Comment: It is possible that such time would nevertheless be subject to the employer's requirement to pay the national minimum or living wage. Although general commuting to and from work is excluded, it is possible that workers with no fixed workplace may be regarded as being on duty from the time they leave their home on their employer's instruction. Unfortunately, as yet, there is no case law on this point.

Thera East -v- Valentine [2017] I.R.L.R. 878