This is a cross-posted article, originally written on the Pure Employment Law Website and has now been posted here. Please note the date on which this article was posted originally and that any information within may have changed.
30th September 2015
For most of us, it seems obvious that travel to and from work doesn’t count as working time – the vast majority of workers have a fixed workplace (although we might sometimes work from other locations) and although the commute is a necessary part of having a job, we wouldn’t consider ourselves to be working during our traveling time.
However, if an employee doesn’t have a fixed place of work, such as if they are field salespeople, peripatetic teachers or mobile care workers, can their travel to and from home count towards their working time?
Previously it had been thought that the answer was no, on the basis that it wouldn’t be the case for those with a fixed workplace either. However, as we covered in our June article here, the Advocate General’s opinion was that such time should count, and as we predicted, the European Court has now reached the conclusion that travel to and from home to the first and last appointment of the day does indeed count as working time.
In the case (the full name of which is a bit of a mouthful – Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL – we’ll call it the Tyco case!) the workers were technicians who had responsibility for installing and maintaining security systems. They were allocated appointments to attend within a certain geographical area but sometimes the appointments could be up to 3 hours’ travel time from their homes. They were provided with company vehicles.
The general definition of ‘working time’ in the Working Time Directive (and the UK Working Time Regulations) is when the person is a) working, b) carrying out duties and c) at the employer’s disposal.
In the case, the European Court decided that this definition was met when workers were travelling to their first appointment of the day as well as home from their last appointment of the day.
So why is this important?
Well one of the main implications of the decision is that all of those hours will now need to be taken into account when calculating things like whether relevant workers are getting sufficient daily and weekly rest, and whether their hours are within the maximum working week (unless they have opted out).
Employers now must look carefully at arrangements that may have been in place for some time – and the arrangements will need to be kept under review as appointments, distances and travel time may vary depending on business needs and customer location etc.
Can we change our workers’ terms so that they aren’t ‘mobile workers’ as a way round this problem?
Some employers will want to consider whether it may be best to change terms, such as by giving some workers a fixed base, to try and get around this problem, but that may not be easy to achieve if it conflicts with existing arrangements. It is best to take advice about the implications of taking this approach.
What does the Tyco case mean for the National Minimum Wage?
Since news of the case first broke we have been receiving a number of queries from employers about whether this could mean that the National Minimum Wage (NMW) also applies to this travel time. The National Minimum Wage Regulations specifically state that travel to and from a worker’s assignment and their home does not count towards the NMW. As the NMW Regulations originate in UK law rather than coming from European legislation, from a legal point of view the Tyco case does not affect how UK courts and Tribunals apply the NMW.
However, given the recent focus on paying the NMW for travel time during the working day for mobile workers (which we covered in our recent article here) particularly in the care sector, it would not surprise us if this were to change in future. We will of course keep you informed regarding any developments on this area.
What would happen if a worker were to move house, and thereby increase their travel time?
This point obviously hasn’t been tested yet, but we have already been asked about it by a few eagle-eyed employers! The new rules do mean that if an employee were to relocate, perhaps to the other side of a territory, and thereby increase their working time significantly, they might be responsible for taking themselves over the maximum working week (or potentially affecting their daily/weekly rest etc). It would not necessarily entitle them to additional pay (for example if they are salaried), but this may depend on how their pay is calculated. For employers who are concerned by this, the best approach is to include a clause in the worker’s contract requiring them to reside within a specified geographical area as a condition of their employment. We can help with drafting these kinds of terms and advising you on how best to deal with implementing the changes – do get in touch if you would like to discuss the best approach for your organisation.