If you engage workers who need to travel from home in order to carry out their work – for example, community based care workers who drive from their homes to see patients – you will need to be aware of a new Spanish case which has suggested that time spent
- traveling to the first appointment of the day, and
- returning from the last appointment of the day
may count as 'working time' for the purposes of the EU Working Time Directive ('the Directive').
In Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL, the workers in question are assigned to a central office in Madrid, but use company vehicles to travel to the company's clients in order to carry out work installing or maintaining security equipment. Under the company's policy, time spent travelling from workers' homes to their first appointment, and time spent travelling home from the last appointment, does not count towards the workers' 'working time' for the purposes of their working day.
The Advocate-General to the European Court of Justice has said, in an 'Opinion', that this time should form part of 'working time' for the purposes of the Directive and, to that end, there are three criteria for determining 'working time', which are:
- a workplace criterion (being at work);
- an authority criterion (to be at the disposal of the employer); and
- a professional criterion (to be carrying out the activity or duties).
The Spanish workers fulfilled all three of these criteria during the travel time in question.
An objection that may be raised by employers is that such travel time may be abused by employees carrying out their personal business en route to work, or on their way home. But the Advocate General has said that this concern is not sufficiently important to justifying excluding the travel time from the remit of the Directive and, in any event, employers could put in place policies to monitor employees and prevent abuse.
The Attorney-General's Opinion is not binding on the European Court but is usually followed. The publication date for the Court's final judgment on this matter is not yet known, but we will keep you informed.
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.