ONPOINT / A legal update from Dechert
Travelling Time - Is It Work? CJEU Decides that Travel Time for Workers With No Fixed Workplace Can Be Working Time
The Court of Justice of the European Union (the CJEU) has held, in Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL & ors, that for the purposes of the Working Time Directive (2003/88/EC) (the WTD) the time spent travelling between an employee’s home and the premises of the customer designated by the employer at the beginning and end of each day, should count as working time. This decision currently only applies to those employees with no fixed place of work (mobile workers). This decision has attracted a great deal of press interest and criticism on the basis that it will lead to a significant increase in costs for UK business. However, some of these reports may have been a little misleading as we explain in more detail in this OnPoint.
The CJEU Decision
Tyco Integrated Security SL & ors (Tyco) conducts a business which involves installing and maintaining security systems. Tyco employs technicians to install and maintain the security systems within a geographical area assigned to them. Following the closure of its regional offices, all its employees were attached to the central office in Madrid (Spain). These workers have the use of a company vehicle to travel from their home to the location of their customers. Prior to the closure of the regional offices, the arrangement had been that time spent travelling to and from the regional offices from home was not considered working time but that time spent travelling to the first appointment from the regional office and to the regional office from the last appointment of the day was counted as 'working time'. Its current policy is that only the time from the beginning of the first appointment to the end of the last appointment of the day counts as working time. Tyco’s employees argued that time spent travelling between home and customers should be counted as working time.
‘Working time’ is defined in Article 2 of the WTD as any period during which the worker is (a) working; (b) carrying out his duties; and (c) at the employer’s disposal. The WTD is implemented in the UK by the Working Time Regulations 1998 (the WTR),
The CJEU determined that the time spent Tyco’s employees spent travelling between home and customers’ premises at the start and end of each day was working time because:
- The workers’ journeys to and from customers was a necessary means of providing their technical services to those customers, so they were carrying out their duties during that time.
- Since Tyco determined which customers, in what order and at what time the workers had to visit, they were at their employer’s disposal.
- Travelling is an integral part of being a mobile employee and therefore an individual’s hours of work should not be restricted to the physical areas of work on the premises of the employer’s customers.
Furthermore, the CJEU was not persuaded by the arguments of the UK Government that it would lead to an inevitable increase in costs for employers like Tyco. The CJEU pointed out that employers would remain free to determine the remuneration for the time spent travelling between home and customers (as this is not determined by the WTD or the WTR) subject to the requirements of the national law of the employer.
This interpretation of the WTR applies immediately and applies to both public and private sector employees. There has been a lot of press commentary suggesting that this decision will have a significant and costly impact upon businesses in the UK. However, the reality may not be quite as serious as some commentators would have us believe.
It is important to remember that, for the time being, this decision only applies to mobile workers. In addition, Tyco’s case was not assisted by the fact that its policy as to travel time constituting working time had been different prior to the closure of the regional offices and it had been its decision to close those offices. There may be an argument that this case was specific to its facts and the courts and tribunals of England and Wales may take a different approach in another case involving travel time.
In any event, there are two ways in which the impact of this case is potentially mitigated. First, in England and Wales, employers can ask their employees to “opt out” of the 48 hour working week limit under the WTR. Assuming employees agree to this, the fact that their travelling time may take them over this limit will be of little consequence provided that employers ensure that they are taking the requisite rest breaks provided for under the WTR. Second, employers may not actually have to pay employees for this travelling time as the WTR does not legislate for the remuneration of working time which is governed by the National Minimum Wage Regulations 2015 (the NMWR). Section 34(1)(a) of the NMWR specifically excludes travel between a worker’s home and a place of work or a place where an assignment is carried out from working time.
However, whatever the strict legal position, given the amount of publicity this case has generated, it is likely that employees will expect to be paid for this time and that the UK Government will come under pressure from unions to amend the NMWR to require employers to be paid for this time.
In the light of this case, we would advise employers to take the following steps:
- Identify whether any of your employees spend time travelling which could constitute ‘working time’.
- Review your contracts and handbooks to identify what, if any, written policy exists in terms of travelling time constituting working time, and the payment for such time.
- Consider whether any amendments need to be made to your contracts and/or handbooks, and if so, whether a consultation process needs to be followed.
- Consider whether it should be a term of the contract that an employee must live within a certain distance of the locations within which your company operates.
- Consider implementing monitoring procedures to ensure that mobile employees are not abusing the time spent travelling to and from appointments at the start and end of their working day and that the requisite rest break provisions are properly adhered to.