Posted on 11.9.15 by David Walton
The European Court of Justice has ruled that time spent by mobile workers travelling to and from customer appointments counts towards working time. Mobile workers are those classified with no fixed workplace, for example field sales executives.
By many employers, this time has not previously been considered as working time. The ruling may well see thousands of UK employers reaching for a copy of the Working Time Regulations which provide that most employees cannot work more than 48 hours in a week, unless they choose to opt out. The judgment in the European court takes effect immediately and could be more bad news for businesses who have been on the wrong end of several recent judicial decisions which have impacted on their employment costs.
The case was brought to court by a Spanish trade union against Tyco, a company which installs and maintains security equipment at customers’ premises. Under Tyco’s policy, the time spent by workers travelling to their first appointment and from their last appointment did not count as work. Each worker has a company car and can travel can be as much as 100km in a day in and around the Madrid area, sometimes driving as much as three hours to their first job, which the employer argued was a “rest period”.
The European Court of Justice has now declared that working time for such workers starts when the employer leaves their house and are “at the employer’s disposal” and carrying out his or her duties. One reason for this finding is that Tyco determine the list and order of the customers their employee is to visit and their appointment times, thus the worker is not free to choose.
The judge ruled that making staff “bear the burden of their employer’s choice” deviates from purpose of the European working time directive.
Impact on UK Business
Whilst David Prentis, general secretary of the Unison union, is quoted as saying, “Now, thanks to this case, they should also be paid when they are travelling to their first visit, and again back home from their last”, affected employees may not actually be paid at the same rate as the rest of their working time.
The ECJ left it open for employers, according to their own national laws, to determine rates of pay for time spent travelling between home and customers. Whilst the counter-arguments included one that the ruling would allow for employees to abuse such time, such concerns were dismissed by the court given employers’ ability to monitor any such travel time for signs of abuse.
The ruling will no doubt cause ructions for UK employers with the ever-increasing demand for remote working. There may well be costs implications in terms of remuneration and monitoring. However, it’s worth noting that if employees are permitted a large element of autonomy in organising their day and/or are permitted to intersperse their work duties with personal business, these are factors which may point to journeys to and from home not constituting working time. Some employers may want to go the other way and impose very rigid instructions on journeys so that, although caught by working time, the first journey of the day is limited in duration, as is the last.
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