The European Court of Justice (ECJ) has given an important decision about the status of time spent travelling between home and work for workers who do not have a fixed or regular place of work, resulting in this time now being classed as working time for the purposes of pay and calculating rest break entitlements.
Paid Travel Time For Work
Background
In many industries workers do not have a fixed or regular place of work, instead travelling directly from home to various locations such as customer premises, suppliers and events etc. (these are known as peripatetic workers).
Under the European Working Time Directive, “working time” covers any time when the worker is working, at the employer’s disposal and carrying out their activity or duties. Conversely, a rest period is any time that is not working time.
The Working Time Directive is implemented in the UK via the Working Time Regulations (WTR) and neither provides any guidance on whether travel to and from work or between places of work should be classed as working time.
Facts in this Case
In this Spanish case, the workers were technicians working on security and fire alarm systems. Each technician was assigned to a geographic area, with the company having a central office in Madrid. The technicians had company vehicles to travel from their homes to various customer premises in order to carry out installation or maintenance.
The policy was that the first and last journeys of the day were not counted as working time, and therefore the working day would start when they arrived at their first assignment and finish when they left the last assignment.
Their trade union lodged a complaint in the Spanish courts stating that the travel time ought to be included within working time.
Decision
The ECJ held that the first and last journeys should be classed as working time, on the basis that the workers could be classed as working, being at the employer’s disposal and carrying out their activity or duties whilst travelling between work and home.
Reasoning
The ECJ found it relevant that the company had previously had regional offices and employees had been paid for the first and last journeys of the day to and from customers under the regional office structure; it was only when the regional offices were shut that the first and last journeys were not classed as working time.
Further, the ECJ found that the workers were not able to use their time freely or pursue their own interests during the travel time. It was not determinative that the employees were free to choose their route to the customers. As a result, the workers were “at their employer’s disposal” during the travel time.
Finally, the ECJ ruled that as the workers did not have a fixed place of work and they were carrying out their duties in travelling to and from customers, they must be regarded as working.
Comment
The outcome in this case seemed to be influenced by the fact that the company’s policy changed after shutting their regional offices. The ECJ felt that it was unfair that the workers suffered a detriment as a result of this decision.
This case has significant consequences for any organisation that has field-based workers, as the current common practice is not to pay for part or all of the first and last journey of the day and not to include this time in calculating rest entitlement.
This decision requires a rethink for employers with field-based workers and may be particularly significant for any such workers who receive the minimum wage.
The decision also creates a distinction between field-based workers and those with a fixed place of work, as the latter are expected to commute to work in their own time and will not be paid for this time.
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