Travel time constitutes working time for mobile workers

Posted 21/09/2015

The Court of Justice of the European Union (“CJEU”) has held in Federacion de Servicios Privados v Tyco (“Tyco”) that the time spent by mobile workers, i.e. workers without a fixed place of work, travelling from their homes to the first and last customer locations of the day, constitutes “working time” under the Working Time Directive (“WTD”).

The Tyco decision

Tyco involved a Spanish business that employed technicians to install and maintain security systems. In 2011, the company closed its regional offices, leaving only its central office in Madrid. The reality of the situation was that the provincial employees worked from home, utilising company vehicles to attend customer locations as specified by the company.

The employees claimed that the time they spent travelling between home and customer locations should constitute working time. The question was referred to the CJEU by the Spanish court, who agreed with the employees’ arguments that during their time spent travelling between their homes and the premises of their first and last customers, they were working, carrying out duties and were at the disposal of the employer.

What is the potential liability for employers?

The key potential implication for UK employers is for breaches of the Working Time Regulations 1998 (“WTR”) in terms of the maximum 48 hour week, daily rest period of 11 hours, and daily rest break after 6 hours of work. Increased working time may also have an impact on the levels of holiday that a worker is entitled to, if a worker has their holiday allowance calculated on an hourly basis.

This decision currently only relates to the definition of “working time” and therefore it does not impact pay. The National Minimum Wage Regulations 2015 expressly exclude the notion that travel between home and a place of work should be paid. However, it is not difficult to foresee an argument that such travel time should be paid, or for a claim to be brought for breach of National Minimum Wage (“NMW”) legislation if the “working time” has resulted in an employee dipping below the NMW.

What action should employers take?

Employers should consider their contracts of employment and reality of their engagements, to consider whether their employees constitute genuine “mobile workers”, and whether contracts and policies require updating as a result. It is clear at this stage that the decision only relates to employees that travel to customer locations, as opposed to a variety of employer locations, i.e. other offices.  

Employers should also consider whether their practices need to be amended in order to ensure that they are not in breach of the WTR, such as inviting employees to opt out of the WTR, or by scheduling the first and last jobs of employees closer to their homes in order to reduce travel time. Employers should also ensure that they are providing employees with their requisite holiday allowance.

For individual advice, please contact Jessica Piper on 01603 703073 or email jessica.piper@ashtonslegal.co.uk . Alternatively, please complete one of our online enquiry forms.