FOCUS ON…TRAVEL TIME PAY – THE CASE WITH THE CATCHIEST NAME IN 2015!
If you employ or plan to employ workers in the European Union who have no habitual or fixed place of work, you should be aware of a recent ruling of the European Court of Justice (“ECJ”). The ECJ determined in September 2015 that “working time” for such peripatetic workers includes travel time from home to the first designated customer and back home from the last designated customer.
The issue arose in the case of Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL. The case concerned a group of workers who drove to customers throughout Spain installing security systems. Initially, they started their working day at one of Tyco’s regional offices but, after those offices were closed down, the workers were assigned to Tyco’s central office in Madrid. Thereafter, the technicians travelled from their homes in their company vehicles to their first assignment and returned home from their last assignment of the day, without visiting any premises of their employer. Tyco did not regard the first and last journey of the day, to and from the technicians’ homes, as “working time”. Before the regional offices were closed, working time was calculated as starting from when the technicians arrived at the office to pick up their company vehicle and list of assignments and ending when they arrived back at the office to drop the vehicle off.
The ECJ held that for employees who do not have a fixed place of work, such as the Tyco technicians, the commute time spent traveling between the employee's home and his or her first and last work locations of the day must be considered as working time. The ECJ based its decision on the following rationale:
- First, the journeys of employees without a fixed work location to the customer, as designated by the employer, are necessary to the performance of the technician's job, which in this case was to provide on-site technical assistance to the customer.
- Second, the ECJ reasoned that during the first and last journeys, the technicians were still at Tyco's disposal. In support of this finding, the ECJ stated: during those journeys, the workers act on those instructions of the employer, who may change the order of the customers or cancel or add an appointment. In any event…during the necessary travelling time, which generally cannot be shortened, those workers are not able to use their time freely and pursue their own interests, so that, consequently, they are at their employer's disposal.
- Finally, and closely related to its first point, the ECJ found that the employees were indeed "working" during the first and last journeys of the day. By removing the employee's fixed location, Tyco had rendered travelling between the technician's home and the first and last customer location a necessary part of the job. "The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves". As such, the workers should not have to "bear the burden of their employer's choice".
For these reasons, the ECJ held the commute time spent traveling each day by employees who do not have a habitual or fixed place of work between their homes and the premises of their first and last customers designated by their employer constitutes working time.
As this ruling relates to workers with no fixed or habitual work location, it is likely to affect sales representatives, skilled technicians and care workers, together with others who are required to visit different locations as part of their duties and use their home as their base for doing so.
A concern was raised in the Tyco case that the decision reached could lead to an increased wage bill for affected employers. In practice this will depend on the worker’s contractual terms, which should be checked if there is any concern about the possibility that a worker may be contractually entitled to be paid for the time that would now be classed as working time.
Travel from a worker’s home to place of work or assignment does not qualify for the national minimum wage according to the National Minimum Wage Regulations 2015. However, the Tyco decision arguably involves the development of an inconsistency in approach between the legislation governing working time and that governing the minimum wage. It may therefore only be a matter of time before a worker who is required to travel a significant distance to complete work and is paid the national minimum wage calls into question the application of the national minimum wage legislation in light of the new position on working time following Tyco.
The Tyco decision will undoubtedly create a further challenge for employers in respect of the control and monitoring of a mobile worker’s working time, and a mobile worker’s activities at the beginning and end of the working day. There is potential for issues to arise concerning the question of whether workers have behaved appropriately during what is now classed as working time, and a need to ensure that there is no breach of the Working Time Regulations. In particular, employers will need to check that a worker is not working more than the maximum working week and is taking the relevant rest breaks. Employers may wish to obtain an opt-out from relevant workers in respect of the maximum working week.
