Travelling time and working time – what does this mean for employers?

car-522411_1280The European Court of Justice’s decision that travelling time is “working time” for mobile workers (Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, or Tyco for short) hit the headlines recently with predictions of soaring wage bills for employers. But what exactly does this decision mean for employers in practice?

What is working time?
Under the Working Time Directive (WTD), “working time” is any period in which the worker is working, at the employer’s disposal and carrying out his activity or duties. The only other type of time recognised by the WTD is “rest time” which is classed as any period which is not working time. The reason that the Tyco decision is important is because, prior to Tyco, (with the exception of mobile workers in the transport sector) time spent travelling to and from work was not considered to be working time either under the WTD or our domestic legislation, the Working Time Regulations (WTR). This was on the basis that a worker can choose where to live and can decide how far he is prepared to travel.

The Tyco case
The Tyco case involved workers who installed or maintained security systems on site. The company closed all of its regional offices leaving only its office in Madrid. Workers were instructed remotely using a mobile app, rather than receiving their appointment list for the day on arrival at their local depot, as they had done previously. They could be required to travel up to 100 km from home to the place of work, with journeys taking up to 3 hours. In Tyco, the ECJ had to decide whether the time Tyco’s workers spent travelling to the first customer’s premises from home and from the last customer’s back home was working time or rest time. Unsurprisingly in the circumstances, the ECJ decided it was working time.

What are the implications for employers?
This decision relates to workers with no fixed or habitual work location who use their home as a base, and is therefore likely to affect roles such as sales representatives, mobile engineers, maintenance technicians and care workers. Where travel is an integral part of the job, all journeys to customers are classed as working time.

1. WTR implications
The decision has direct implications for the calculation of the working week, rest breaks and the daily rest periods of such workers.

The working week: the WTR limit a worker’s average working week to 48 hours, unless the worker either falls within one of the limited exemptions, or has signed a valid “opt out” agreement.

Rest breaks: generally, under the WTR a worker is entitled to a 20 minute rest break after 6 hours, and a daily rest period of at least 11 consecutive hours in each 24 hour period. It is not possible to opt out of rest breaks.

With fewer appointments possible in a day, employers may therefore see their income and margins reduced.

Employers who breach the WTR not only risk Employment Tribunal claims from workers, but also potential enforcement action by the HSE and the resultant bad publicity. Failure to comply with HSE improvement or prohibition notices can result in significant fines, and even up to 2 years in prison for company directors.

2. National Minimum Wage (NMW) implications

It has been suggested that mobile workers who are paid NMW may see an increase in their overall pay if their working time is increased, so that their hourly rate does not fall below the NMW.

The WTD does not cover the issue of pay, however. The ECJ commented in its decision in Tyco and what workers are paid for for travelling time is a matter for the national laws of member states.

Travel from a worker’s home to place of work or assignment does not qualify for the NMW, although time spent travelling for the purpose of carrying out assignments at different places does. It could potentially be argued that the journeys to and from the first and last customers constitute “time spent travelling for the purpose of carrying out assignments at different places” but this has not yet been tested.

Action points for employers

• Identify which areas of your business and which workers this may affect.
• Have any affected workers signed WTR opt out agreements? If not, consider asking them to opt out or ensure hours are kept within the 48 hour working week.
• Check your contracts of employment. Are mobile workers entitled to be paid for the additional hours they spend travelling to/from their first/last appointment?
• Look at how you organise your mobile workers’ working day – try to allocate first and last appointments that are closest to workers’ homes to minimise the amount of travel time

If you need advice on the effect of the Tyco decision on your business contact Helen Kay on or .

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