Alert! Travel time included in "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 today handed down its full judgment in the case of Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL.

The ECJ has said today 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.

Today, 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.

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.

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.

Please note, however, that the decision of the European Court of Justice relates to the calculation of 'working time' for the purpose of calculating workers' entitlements to rest breaks; it does not have an automatic effect on workers' entitlement to payment for the time that they are 'working'.

Although the ECJ appeared to be persuaded by the employer's change of practice following closure of its regional office, it seems unlikely that this factor would be determinative.  The key question is whether the worker is at the employer's disposal during travel time and should, therefore, be considered to be 'working'.

If you would like to read the transcript of this decision, please click here.

This case is likely to have a wide application in the UK, for all employers of peripatetic workers.  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.