Earlier this summer, we reported that the Advocate General had given his opinion that care workers who travelled to client’s homes should have their travel time to and from their first and last jobs of the day counted as working time, and thus be paid for it. His opinion has been followed by the European Court of Justice in the recent case of Federacion de Services Privados del sindicato Comisiones oberas v Tyco Integrated Security SL. However, the ruling does NOT mean that workers are entitled to receive more money for their commute time.
Firstly, the case only relates to those workers who do not have a fixed or habitual workplace. In other words, those who work at the same fixed abode will not benefit from this ruling. However, those that are “on the road” and travel to customers’ homes and business premises will be affected. This is likely to affect many in the construction and domiciliary care industries, sales representatives and mobile workers, and may have an impact on those firms that are considering moving away from the traditional office based business arrangement to more mobile ones.
Tyco installed and maintained security systems. They employed technicians to carry out the work. Initially, they were based at local provincial offices. The technicians were provided with company vehicles which they collected from the office at the beginning of the day and dropped off at the end of the day. They were considered to be working from when they picked up the vehicle and their assignment list at the office until when they dropped the vehicle off.
The provincial offices were then closed and all employees assigned to Tyco’s central Madrid office. They instead took the company vehicles home and would travel directly from home to the customer’s premises to undertake their work, often at great distance. Work was assigned via a mobile phone app. They were not required to travel to an office or central location, save to pick up tools and materials once a week.
Following the change in arrangements, the company did not regard travel to the first assignment of the day as working time, nor travel from the last assignment. They argued that as the technicians were not carrying out any installation or maintenance functions during this time, it did not constitute working time and instead was a “rest period”.
In June 2015 the Advocate General set out his opinion that such travel was working time. He set out 3 criteria to determine the point:
They agreed with the Advocate-General. Travel time to customers had previously been paid prior to closure of the provincial offices. The duties had not changed, only the departure points, which were now from the employees’ homes. The workers were legally obliged to obey their employer’s instructions and visit the customers. They were not free to pursue their own interests in that time, and thus were at their employer’s disposal. In travelling to the customers premises they were carrying out their duties. The fact the workers could choose the route to get to and from customers premises did not mean that the travelling time did not constitute working time.
It gave short shrift to the UK and Spanish Government’s arguments that this may encourage such workers to conduct personal business on the way to and from assignments. Its view was that employers should put in place arrangements to ensure abuse of the system did not occur.
The case of Whittlestone v BJP Home Support Limited  already established that for those that did not have a permanent place of work, travel between assignments counted as working time. The Tyco case now extends that to include travel time to and from the first and last assignments.
However, the reasoning given by the ECJ as to why such travel time should be counted as working time could be equally applied to workers who commute to and from a fixed place of work, yet who are not entitled to count such time as working time. Such workers are also free to choose their own route but are still at their employer’s disposal in that they are required to go to work at a set location, and thus are not able to use their time freely for their own interests.
The fact that time spent travelling to and from a work assignment is to be considered working time does not mean the employer is required to pay for it. Working Time is governed by European law. Payment is governed by domestic law. In England and Wales, payment is governed by the National Minimum Wage Regulations. The National Minimum Wage Regulations specifically state that travel time between a worker’s home and their place of work or assignment does not count as ‘time work’ for the purposes of the National Minimum Wage Regulations.
Therefore, the increased hours will need to be taken into account for the purposes of calculating rest breaks, hours worked and holiday entitlements but will not result in a windfall for those affected as the law currently stands.
If you would like to discuss any issues raised in this article, we have specific employment law expertise in advising in this area. For further advice, please contact Angela Gorton on firstname.lastname@example.org or 0113 280 2026.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.