When Does Travel To And From Work Count As Working Time?
In a European Court of Justice case referred by Spain, Advocate General Bott has given an opinion that for workers not assigned to a specific place of work, the time spent travelling from their home to their first assignment and from their last assignment back to their home constitutes 'working time' for the purposes of the Working Time Directive (WTD). THE BACKGROUND Following the closure of various provincial offices, security system installation and maintenance technicians were controlled centrally from Madrid. There was no place of work as such nor any hub to clock into. They travelled using a company vehicle every day from their homes to the places where they were told to, the night before. The Advocate General examined the Working Time Directive based on three criteria in the light of case law namely; a special criterion (to be at the work place), an authority criterion (to be at the disposal of the employer), and a professional criterion (to be carrying out activity or duties). In this particular case the workers were not assigned a fixed or habitual place of work. They were required to work at different premises every day. What the Advocate General says is that it follows that travelling was an integral part of their being a worker an inherent for the performance of the activity of work. It was a necessary means of their providing their technical services to the customers designated by their employer and must be regarded as forming part of their working activity. The Court had been concerned about whether the journeys to and from the customers were personal time or working time. Usually a journey to and from work is personal time. To what extent would the employer have authority over the worker, for example with regard to the routes taken? In this case the Advocate General dealt with the fact that the workers were very much under the direction of their employer as to the hours they worked on customers' premises and what work had to be done and he stated that it was easy to ask them to input times at which they left home and returned home an employer had a way of monitoring whether or not they journey times between the workers homes and the first customer and the last customer was excessive. He also considered that the special criteria relating to the need for the worker to be at the work place was met. Once fixed establishments had been removed the workers were required to work each day in a number of different places about which they were informed only the day before in a predetermined order by the employer. The Advocate General therefore considered that the daily travelling to the first and last appointment could not be described as 'rest time'. They were undertaking to visit customers and had no control or knowledge of what they were doing until they were told the previous day. It should of course be noted that it is still considered that travel to and from a fixed place of employment is not working time. KEY POINTS
- The WTD is implemented in Great Britain by the Working Time Regulations 1998 (WTR).
- Both the WTD and WTR are silent on this specific point.
- Non-statutory guidance from Gov.uk excludes normal travel to and from work workers time and this seems to survive the Advocate General's opinion.
- The opinion of the Advocate General is not binding on the European Court of Justice or on any national court or tribunal. It would be usual, however, for the ECJ to follow the opinion. It should be noted, however, that the ECJ has yet to give its ruling.
- Although not directly binding on this jurisdiction, this decision has very important implications for many employers.
- The decision does only apply to peripatetic workers, that is to say workers who do not have a fixed or habitual place of work to which they first travel.
- Some (relatively few) employees may not want all of their first and last journeys to count as working time and be monitored by the employer and subject to traveling to work rules. For example this could affect the routes they take.
- Conversely, if such travel is working time employers will have to consider monitoring the time taken on journeys to consider whether it is the shortest route or a combination of the shortest and most practical route and very importantly the implications in terms of working hours and rest breaks.
- As the ruling does not apply to travel to and from a hub or clocking in point, some employers may re-think their operations.
- Given the detailed factual background upon which the opinion was based, there are still some questions left open for those workers who are more self-directed and who choose their own route order. However, it is still probable that those workers would be captured by this analysis. Very clear distinctions would have to be made to take them outside it.
- Critically the next step is to consider amending working practices and contracts of employment.
- Our recommendation is that you review the effects on your current work practices and on working hours and rest breaks. You will need advice specific to your organisation on amending working practices if required and to amend contracts. You will need to discuss the details and timing of this with us further.
- It is important also not to forget the limits on average working week and opt-out provisions.