10 November 2015

A recent European Court of Justice case received considerable publicity. The case considered the thorny issue of when commuting to and from work can amount to working time for the purposes of the Working Time Regulations 1998 (WTR).

If you employ staff to transfer to and from customers, this judgment could affect your business. The judgment clarified the definition of 'working time' for peripatetic workers (i.e. workers who are not assigned to a fixed or habitual place of work). The result of this case is that it is very likely that the WTR will be interpreted so that the travel time of peripatetic workers will be regarded as working time, which could have important consequences.

The facts

The case stemmed from a Spanish court. The employer installed and maintained security systems using technicians who are employed to work in various Spanish provinces. In 2011, the company closed its regional offices. Only the head office remained. Technicians worked from home using a company supplied vehicle to attend to customers when working on site. The technicians sued their employer because the company did not treat the workers’ first journey of the day from their home to their first customer, or their last journey of the day from their last customer back to their home, as working time for the purposes of WTR

The decision

The European Court decided that 'working time' is any period during which, in accordance with national laws and/or practices, the worker is at work, at the employer's disposal and carrying out his activity or duties. Each of these 3 requirements must be satisfied. The Court found that:

• “At work” means that a worker who no longer has a fixed place of work is carrying out duties during the journey to or from a customer. The worker must therefore be regarded as working during that journey. 
   
• “At the employer's disposal” during the relevant trips requires a consideration as to whether the worker is required to be physically present at the place determined by the employer to be able to provide the appropriate services immediately. The worker must be placed in a situation in which he is legally obliged to obey the employer’s instructions and carry out the employer’s activities. If workers can manage their time without major constraints and pursue their own interests, such time might not be working time. In this case, the employer determined the list and order of the customers and the times at which customers were to be seen. During the journeys, the workers had to act on the employer’s instructions. The workers could not pursue their own interests during those times. Thus, they were considered to be at their employer's disposal.
  
  
• Finally a worker would be regarded as 'carrying out his activity or duties' during the time spent travelling between home and customers if the journey to customers is a necessary means of providing services to those customers. The Court said that the fact the employer regarded the journeys as working time before the restructure showed that the time was part of the workers’ duties.

The European Court stated that employers can, if they wish, monitor staff to ensure there is no abuse of the system by workers (albeit care is needed to ensure compliance with data protection and other requirements). In addition to monitoring workers’ behaviour, employers can require workers to take the most direct route possible in their journeys.

So what does this mean in practice?

This means that workers using a company vehicle to go from their homes to visit a customer (determined by the employer) or to return home from a customer, would be working during their commute.

Contrary to some press reports, this does not necessarily mean that such time would require to be time for which payment is due, since payment is determined by the contract of employment (and the national minimum wage regime). There may well be cases where entitlement to payment is conditional upon the time being “working time” in terms of the WTR, but that is not necessarily the case. The WTR exist to provide a framework for calculating rest breaks, holidays etc. The time spent commuting in circumstances similar to those arising in this case would require to be taken into account in assessing entitlement to breaks etc. Whether wages are due for that time is a matter for the contract of employment.

Making sure the contractual position for such workers is clear and that compliance with both the WTR and national minimum wage regime is achieved is a must. As ever, specialist employment law advice is recommended to manage the risk. Happy driving!

Contact: David Hoey, Partner and Accredited Specialist in Employment Law dho@bto.co.uk T. 0141 221 8012