The working week – it’s just got longer for some people
In a significant decision, the European Court of Justice (ECJ) has just held that, for workers who do not have a fixed or habitual place of work, the time spent travelling each day between their homes and the premises of their first and last customer constitutes “working time” within the meaning of the Working Time Directive.
The decision has implications for many thousands of workers such as home care workers, IT engineers and sales representatives. For employers, the decision will mean the need to consider the hours worked by such staff, and the remuneration they receive, to ensure that they are not in breach of the Working Time Regulations 1998 (which implements the Directive in the UK) and the National Minimum Wage Regulations 2015.
The issue in the case of Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another was whether the 75 Tyco technicians who were employed to install and maintain security equipment in homes and business premises were “working” when they left their home to travel to the first customer of the day and when they travelled home from their last customer. Until 2011, all of the technicians who provided the installation and maintenance services worked from regional offices and had responsibility for a particular geographical area. They made their own way from home to the relevant office and on arrival, picked up a company car and the list of customers they were to visit that day. At the end of the day, they left the car at their office and went home. Tyco counted the daily “working time” of the technicians as starting from the time they arrived at the office to pick up the car and made their journey to the first assignment and ending after they travelled back from the last assignment and dropped the car off.
In 2011, the regional offices were closed and the technicians were assigned to the central office in Madrid. They were provided with a company car to travel from their homes (and back again) to the various places where they were required to carry out the installation and maintenance services. The distances from home to the assignments varied and sometimes exceeded 100 kilometres. The night before each working day, Tyco sent details of the technicians’ assignments by mobile phone. Significantly, with the closure of the regional offices, Tyco no longer considered that the first journey of the day from home to the first assignment or the last journey of the day back home as “working time”. They considered it as a rest period. The technicians argued that the time spent travelling on the first and last journeys should be counted as “working time”.
Article 2 of the Directive defines the elements of “working time” as any period:
- When the employee is working
- When the employee is at the employer’s disposal
- When the employee is carrying out their activities or duties in accordance with national laws and/or practice
“Rest” is any period which is not “working time”.
The two categories are mutually exclusive and there is no intermediate category.
Neither the Directive or the Working Time Regulations state that travel to and from a place of work or between places of work counts as “working time”. However, UK Government guidance clearly states that normal travel to and from work, that is, the daily commute, is not “working time”.
In June 2015, the Advocate General gave an Opinion in this case which the ECJ has now followed. It applied the three elements of “working time” to the time spent travelling by the technicians between home and customers.
Firstly, the technicians’ journeys were necessary to provide the installation and maintenance services to customers. If those journeys were not taken into account, then Tyco could argue that only the time spent on the actual activity of installation and maintenance counted towards “working time”. This would “distort” the concept of “working time” and jeopardise the objective of protecting the health and safety of workers. It was significant that, until the closure of the regional offices in 2011, the first and last journeys of the days were regarded as “working time” by Tyco. With the closure of the offices, the nature of the journeys had not changed but only the departure point.
Secondly, Tyco determined the list and order of customers and times of the appointments. The order of the customers could change and appointments could be added or cancelled by Tyco. When travelling to customers, the technicians were at Tyco’s disposal and subject to its authority. They had to be present at a place determined by Tyco and be available to provide the necessary services. Although the technicians had a certain flexibility, for instance, in relation to the route taken, the technicians were not free to pursue their own interests, something they could do if they were having a rest period.
Finally, travelling was an integral part of being a worker who had no fixed place of work. The place of work could not be limited to the physical areas of their work on the premises of their employer’s customers. In this case, travelling was necessary for the installation and maintenance of services. Consequently, travelling between home and customers must be regarded as forming part of the technicians’ activities or duties, and so counted as “working time”. The fact that the first and last journeys started and finished at the technicians’ homes was irrelevant. That change came about solely because of Tyco’s decision to close the regional offices.
Interestingly, the UK Government provided written submissions in the case. It made the point that if the first and last journeys counted as “working time” this would increase employer costs. The ECJ’s response was that the remuneration for time spent travelling between home and customers was something to be determined by Tyco which “remains free to determine the remuneration for the time spent travelling between home and customers.” The issue of remuneration was not covered by the Directive but by the provisions of national law.
Implications for employers
According to the TUC, up to 975,000 people in the UK may be affected by the ruling.
However, where staff have a permanent office, it is unlikely the Tyco decision will have any effect even if they travel a lot for their job.
The significance of the decision is that for employees with no office base or place of work and where travelling is an integral part of their role, employers will now have to count the time spent on the first and last journey from home to the assignment and back again as “working time”.
Taking a practical example, if a sales representative’s current working week is 40 hours (9am to 5pm) over 5 days and they spend, say, half an hour at the start and end of each day travelling to and from a customer, their working week has increased by 5 hours. This is within the 48 hour maximum working week and there are no specific implications for the employer in relation to “working time”. There may be remuneration issues and the decision may mean that some employers will face higher wage bills in the future. The national minimum wage legislation has its own rules about whether travel time is included or excluded from the calculation of the national minimum wage depending on the type of work carried out. What if the employee is paid well above the national minimum wage even when the additional hours spent on travelling are taken into account? From an employment relations perspective, employers may conclude that extra remuneration ought to be paid. As stated in the judgment, employers are free to determine the remuneration and may decide to have a different level of remuneration for travel time compared to “normal” working time.
If the sales representative’s sales region is extensive and they spend an hour at the start and end of their day travelling to and from customers, the working week is now 50 hours. Unless the individual has already signed an “opt out” in relation to the 48 hour weekly limit, the employer will be in breach of the Working Time Regulations. This is in addition to any potential issues under the national minimum wage legislation, as mentioned above. Employers should therefore ensure that they are aware of the number of hours spent on the first and last journeys from home by their employees. This could be quite problematic in a large organisation.
So what should employers do now?
First of all, where the employee is genuinely home-based and travelling is not an integral part of their role, the Tyco decision will not be a cause for concern. Similarly, perhaps the travelling from home to the first customer has developed as a matter of convenience for the employee and there may well be an office base. In those circumstances, to avoid the issues raised in Tyco, the employer could now insist that all employees start and finish their journeys from the office.
Where the employer has control over the order in which assignments are carried out they could ensure that the employee with no office base makes the shortest customer visits at the start and end of their day. This will then reduce the amount of “working time”.
With thousands of peripatetic workers in a wide range of sectors, many employers will now need to re-consider how they count “working time” as a priority as a result of the Tyco decision. This will involve checking contracts of employment to identify the provisions specifying the number of working hours and arrangements for overtime if any.
We would be happy to assist in this review and please get in touch with your usual Blake Morgan contact if you would like more information.