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Focus on Employment

Do you need to treat the time your workforce spend travelling to and from work as "working time"?

The European Court of Justice (ECJ) in the case of Federacion de Servicios Privados v Tyco Integrated Security  has confirmed that travel to and from work does count as working time but only for mobile workers with no fixed or regular workplace.

Here are the answers to some of the top questions we have received about the implications of this decision.

1. How does this ruling affect workers whose contracts state that they are based at one location but in practice are rarely there?

The decision did not explicitly deal with this scenario and the position is uncertain. However, there is certainly a good argument that if the employee elects to work in a different location (rather than being directed to do so) then their additional travel time will not have to be included.

Even if they are directed to work at other offices from time to time, the fact that they do have a fixed place of work could mean that it falls outside the scope of this decision.

2. Does this ruling apply to a group of peripatetic employees who travel to different workplaces in transport provided by us?

The decision applies to workers who have no fixed or habitual place of work and are required to travel to different locations to perform their duties. It does not make any difference if they travel in their own vehicles or in transport provided by you.

The workers have to travel to get to their designated workplace and it is difficult to see how this is not an inherent part of performing their duties. This would be different if they had a fixed place of work as any travel would be deemed to be “commute time” and would not be counted as “working time”.

Although there is a clear difference between driving to work and being a passenger, travelling in transport provided by you will not be “rest time”. Time has to be spent working or resting and there are no grey areas (in law, rather than in practice). You determine where your staff work (and in most cases how they get there). Either way, the employees have no control over their place of work.

3. Our staff meet at a designated meeting place and we then take them to their workplace. Can we argue that the designated meeting place is their place of work?

It is possible (though not very likely) that the designated meeting place could be considered to be the worker’s fixed or regular workplace. Even if it was, this may not be of much help, particularly if most of the workers do not live far away from this as only the time spent travelling to and from the meeting point would be excluded. All other time, including waiting time if the transport was late would be deemed to be working time.

4. Does this case affect mobile workers engaged on long term projects?

There might be an argument that this case does not apply to workers engaged on long term projects where they remain at the same place for a certain period of time, but that will have to be tested in due course.

Workers who move from one place to another perhaps on a weekly, or on a slightly longer basis will not have a usual place of work and are likely to be covered by this decision.

5. Does this ruling to count travel time at the start and end of a journey take immediate effect in the UK? Should we be changing our processes now?

This case has immediate application to UK businesses and if some of your workers are affected you must include time spent travelling in their working time calculations.

6. Does this ruling mean that we have to pay the National Minimum Wage for each hour of travel?

No. There is no connection between the Working Time Directive and the National Minimum Wage (NMW) legislation and the NMW legislation is unaffected by this decision.

However, it is possible that workers might seek to bring breach of contract claims where their contracts expressly provide that working time will be paid (as might be the case where the worker is paid an hourly rate for each hour worked).

That said, this does not mean that travel time necessarily has to be paid at the same rate and, depending on the contractual provisions, it might be possible to differentiate between working and travel time to and from work. You may also be able to argue that this case made it clear that it was up to member states to determine the appropriate rate of pay for travel time and until the Government deals with this, no liability arises.

7. One of our employees is based at our head office but travels from home to different customers several times a week. Do we have to count the time he spends travelling to and from home?

No. Your employee has a fixed place of work and it is not necessary to count the time he spends travelling to and from home as working time.

8. We have a mobile workforce that will be affected by this decision. Can we stipulate how long we think their journey’s should take and refuse to include any time in excess of this?

You must include all time that your workers spend travelling in performance of their duties, but not for any time that they spend on personal matters (such as running errands on their way home).

You can determine the order in which your staff visit customers (to limit the amount of travel time) and can audit their journeys and check to see how long they have taken. If the travel time appears to be excessive you are perfectly entitled to ask the employee to account for this (and in appropriate cases to discipline him/her) if their claims are incorrect.

9. Will this case affect provisions relating to rest periods and average working weeks?

Potentially, yes. You will need to make sure that your record keeping for each worker includes time spent travelling at the beginning and end of the day and provide appropriate statutory rest periods (which are determined by reference to age and whether a worker works during the day or night).

Including hours spent travelling may also push a worker’s working week over the 48 hour maximum (which is averaged over a 17 week period unless extended by agreement) and, if it does so, you must ensure that your worker enters into an opt-out agreement.

It is helpful to ask workers to sign an opt-out at the start of their employment – even if you do not anticipate it will be required. Remember, that employees must not be forced or otherwise coerced into signing an opt-out and are also entitled to give notice to terminate their opt-out.

Winter 2016

  • Legislation tracker - What does 2016 have in store?
  • Case tracker - What does 2016 have in store?
  • News in brief
  • Focus on HR - How not to handle a disciplinary process
  • Do you need to treat the time your workforce spend travelling to and from work as “working time”?
  • Case law update
  • Download Winter 2016 issue (PDF)

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