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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