We all know that the decision isn’t binding, but it invariably points the way towards the kind of decision that the European Court will make shortly.
The decision is about travelling workers. Specifically, its about workers (including employees) who have no fixed place of work. In other words, they have to travel to be at a place of work, such as a customer’s site. They have to be at the disposal of the employer and also be carrying out some kind of duties.
In this snappily titled case of Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL & 74 Others, the travelling workers had no fixed place of work. They spent time travelling from their home to their first place of work that day. They also spent time travelling home from their last place of work that day. They went to pick up equipment for example from one place before going to do work in another location. They had company vehicles and Blackberry mobile phones to keep in contact with the employer and get notification of their next jobs. The question which was referred to the court from Spain was whether these 75 workers should have the travel time spent going to their first location, and the travel time returning home from their last location, included as working time for the purpose of the EU Working Time Directive. There are no prizes for correctly guessing that the Advocate General’s view is that this time should be included in the calculation of working time for these 75 workers. Reference was made in the decision to the fact that a person is either at work or at rest with no grey area in between.
In this particular case the workers carried out electrical or installation work. The employment contracts stated that their time spent travelling what could be up to 100km a day on these first and last trips, and would not be included in the calculation of their working time. Oh dear. Clearly this decision has the potential to be problematic because as we all know, the amount of time a person spends working has a knock on effect for a great deal of other things. For a start, rules about Working Time are health and safety based legislation so there is the issue of when a rest break should be taken after the first six hours of work. Secondly, if a person is hourly paid, then they will unlikely have ever received their correct amount of hourly pay whilst in that type of role, and thirdly, their calculation of average pay for the purposes of their holiday pay will have probably also been wrong making it much harder for an employer to point to long periods of correct pay. Clauses specifying a “sham” place of work are unlikely to be tolerated either.
So, although this ruling isn’t law here yet, this is a “heads up” to the way that the law is developing. Its time to look at the costs and implications going forwards for when (rather than if) this takes effect here. And remember, with the budget for HMRC having been increased to allow for more investigations into National Minimum Wage breaches, employers with this kind of staff won’t want to find themselves on a “Name & Shame” list for not paying the correct amount of hours of National Minimum Wage. If you’d like expert input to guide your review process, then please get in touch. Our specialist employment law team are always happy to help. It’s painless, more cost effective and a lot less stressful than a visit from HMRC.
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