Travel to work can be 'work'

 Julian Hoskins from Bevan Brittan reviews a recent case which clarifies whether travel time can also constitute working time.

 
In an important decision for any organisation whose workers are based at home but travel to carry out their work – such as community nurses who drive from their homes to see patients, or maintenance staff who travel to various sites to carry out repairs – the European Court of Justice (ECJ) has recently handed down its full judgment in the case of Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL.
 
The decision
 
The ECJ has said that the journeys made by workers:
 
  • without a fixed or habitual place of work
  • between their homes and the first and last customer of the day
 
constitute 'working time' for the purposes of the Working Time Directive ('the Directive'). 
 
The workers in question are assigned to a central office in Madrid, but travel to clients to install/maintain security equipment. The company excludes from 'working time' any time spent travelling from the workers' homes to their first appointment, and time spent travelling home from the last appointment. However, this practice only began when the company closed its regional office. Prior to that, workers' 'working time' was calculated from when they collected their company vehicle from the company's regional office, ending when they returned their vehicle there in the evening.
 
The ECJ has decided that for peripatetic workers (i.e. those workers who do not have a fixed or habitual place of work), time spent travelling each day between home and the premises of the first and last customers constitutes working time within the meaning of the Directive. In addition, the ECJ said that for peripatetic workers, travelling is an integral part of being such a worker, so the place of work of that worker cannot be reduced to the physical areas of customers' premises.
 
The ECJ noted that the company's change of policy on the calculation of working time (following the regional office closure) did not alter the nature of the journeys; it was only the departure point that changed. A key consideration was that the workers were ‘at the employer's disposal’ during the travel time; the workers acted on the instructions of the employer, who could change the order of the customers or cancel or add an appointment.
 
What does this mean for employers?
 
This decision provides clarity for employers that travel time for mobile workers to their first appointment of the day, and from their last appointment, is 'working time'. This will impact on all workers who have no fixed place of work, such as community nurses and community care workers.
 
The key concern amongst most employers will be the impact on cost; but, contrary to many press reports, this decision does not relate to pay. The Tyco decision considered the definition of 'working time' for the purpose of calculating workers' entitlements to rest breaks and maximum working week – not pay.
 
Our domestic legislation, the National Minimum Wage Regulations, expressly exclude travel time from home. This is reflected in the non-statutory minimum wage guidance from the Department for Business Innovation and Skills which states, at page 33, that "Time spent travelling between home and someone's normal place of work and back again does not count as time when the minimum wage is payable."
 
In the coming months, it is possible that unions will see the Tyco decision as an opportunity to put pressure on the government to change our domestic legislation, so that travel time to and from home is included in calculations for the purpose of paying the minimum wage (and the new 'living wage'). However, for the time being, this decision only applies to the calculation of working time for the purpose of workers' maximum working week and entitlements to rest breaks.
 
Please do contact me or another member of the Bevan Brittan employment team if you require any advice about the potential implications of this case for your organisation.
 
 
Julian Hoskins
Head of Employment
Partner
Tel: 0370 194 1608