European court rules travelling to and from work ‘is work’ for those without a fixed workplace

European court rules travelling to and from work ‘is work’ for those without a fixed workplace

Head of Employment Law at Gosschalks, Ted Flanagan, looks at the ruling in Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another, and what it means for employers.

This is a case that relates to what are known as peripatetic workers. That is to say, those workers who don’t have a fixed place of work.

The group of workers who brought the case installed and maintained security systems.

Each technician had an area they covered, and on each day there would be a number of jobs for them to travel to and carry out. Obviously, these would be customer premises.

Apparently, they received their job list each morning via a mobile phone app. At the heart of their complaint was the fact that Tyco didn’t regard the first or last journey of each day as working time.

This meant their pay only really reflected the time they spent between starting the first job and finishing the last job.

Although it did cover the time travelling between jobs, Tyco said that they regarded the ‘travel to’ and ‘travel back’ time as rest time. The distances involved could sometimes amount to more than 100 kilometres.

The case raised an interesting, and for many employers potentially expensive, point of law.

Obviously, for the great majority of employees time spent travelling to and from your office, factory or whatever is not working time.

Our own Working Time Regulations and the original European Working Time Directive on which they are based are not clear as to whether such travel to different places of work amounts to working time.

It’s clear that any time that is not working time is rest time. So that explains why Tyco had to define the travel as rest time when on the face of it that seems somewhat illogical. But if they were not calling it rest time, it would have been working time and then individuals would have had to have been paid.

The original Directive only has two classifications: working time or rest time. So if it’s not one then it’s the other and vice versa.

There is non-statutory (which is to say not actually law, but nonetheless persuasive) guidance on that suggests:

“Time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24 hour plumbers” is included in working time. But also “normal travel to and from work” and “travelling outside of normal working hours” are not.

However, in this case the opinion of the Advocate General, which has now been followed by the European Court of Justice, is that this time should count.

What this means for you

If you have staff who work on this basis then this is potentially a very significant case. On the face of it, the sensible way forward would be to consider damage limitation methods now.

This could be a real problem for some employers. There have been newspaper reports recently about cases being brought against MiHomecare, which is Britain’s fourth biggest care agency employing around 4,000 staff in 38 branches.

MiHomecare’s staff travel around providing care to individuals in their homes. It’s estimated that 883,000 people in the UK receive care in their home with more than half a million people employed in the sector.

Unfortunately for MiHomecare, an internal document has been leaked and published which shows an analysis of unpaid travel time for just 44 members of staff in their Penarth branch.

Their internal report concedes that those 44 were probably due up to £80,000 unpaid wages over the previous three years. That gives an indication of the scale of this issue.

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