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The decision of the European Court of Justice (“ECJ”) in the case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (c-266/14) has given the red light to employers failing to recognise travel time as “working time” for peripatetic employees i.e those who do not have a fixed or habitual place of work. Such employees typically include tradesmen, sales reps and care workers and therefore they make up a large percentage of the UK workforce.
This was a case brought by a number of Spanish technicians of a number of security system installation and maintenance companies (Tyco Integrated Security SL and another) who claimed that the companies were breaching the Spanish working time rules by not including the time they spent on their first and last journey of the day as amounting to “working time”. Further to the companies closing their provincial offices, all employees were assigned to the central office in Madrid and the employees were therefore expected to travel direct from home to their first assignment. However these employees’ working day only started from the time the technicians arrived at their first assignment and it ended when they left their last assignment. The ECJ held that the time spent by such workers on travelling each day between their homes and the premises of the first and last customers assigned to them by their employer is “working time” for the purposes of the Working Time Directive.
The Working Time Directive is a piece of European legislation which is implemented in the UK by means of the Working Time Regulations 1998 (“WTRs”). The Working Time Directive and the WTRs are designed to protect employees by laying down regulations on how long employees can work; how much rest periods they should have; and making provision for holiday entitlement. This legislation provides that no employee in the EU is obliged to work more than an average of 48 hours per week.
The ECJ decision marks an overhaul from the practice that, until now, has been followed in the UK, which was that normal travel to and from work and travelling outside of normal working hours was not “working time”, and therefore ordinarily workers were not paid for such time and nor was this taken into account when determining what rest breaks they were entitled to. This practice was followed because the WTRs do not specifically state that such travel would be considered to be “working time”.
This decision is expected to have far-reaching, and potentially financially detrimental implications for UK employers of peripatetic employees. A large percentage of peripatetic employees will be national minimum wage employees and therefore by including this additional travel time, it has been argued that this ruling could allow such workers to claim more money for the time they spend getting to work. However with careful drafting of employment contracts and allocation of work tasks I believe that such outcome could be avoided, and in any event it may not have the financial implications predicted given that there is no European right to a national minimum wage, this being a UK specific right.
Practical advice for employers therefore is to carefully review your employment contracts, disciplinary procedures and the working hours for peripatetic employees. You should ensure that employees have adequate rest breaks and that you have monitoring procedures in place to avoid potential abuse from employees conducting their personal business at the beginning and end of their working day. I advise that best practice in light of this decision is to seek legal advice to ensure that your business continues to get from A to B while avoiding an Employment Tribunal pit stop on WTRs breaches.
For more information please contact James Baker.
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