A judgment from the European Court of Justice (ECJ) last month ruled that for those who do not have a fixed office, time spent travelling to and from the first and last work related appointment of the day is to be considered “working time”, and would count towards the 48-hour working week.
Under the Working Time Directive (“WTD”), workers cannot work more than an average of 48 hours in a week, unless they opt out of this requirement.
In the UK, time spent travelling “to and from work” and “travelling outside normal working hours” previously did not count towards as working time, but in the case of Tyco, the ECJ ruled that in certain circumstances, travelling would count as “work”. Under the WTD workers are also entitled to a 20 minute rest break after six hours of work.
In Tyco, following the closure of the company’s regional offices in Spain in 2011, workers were required to travel from their homes to their clients’ premises to install security systems, with some workers driving for up to three hours to attend their first appointment. However the company would calculate their working day as beginning at the moment at which they arrived at their first client, to the moment they left their last client. The time taken to travel to and from the first and last appointment was not considered as “work”.
The ECJ ruled that the time spent by the tradesmen (who did not have a fixed office) travelling to and from home should be considered “work” and included in the calculation for “working time”.
The ruling, which takes effect immediately, does not apply to “ordinary commutes”, for example staff travelling to their regular place of work or their office. It would only apply to those who did not have a fixed office or workplace, so for example, carers and sales representatives.
Some potential implications of the judgment for companies in the UK…
- Employees will be entitled to payment for travel time to and from first and last appointments.
- Employees may abuse their paid travel time by using it to carry out their own personal business, so companies need to ensure they have procedures in place to monitor and deal with this.
- Some employees will now be working over the maximum 48-hour week requirement, and companies will have to ensure employees have opted out to avoid falling foul of the regulations.
- Those who do not want to opt out may be entitled to a reduction in working hours.
- Employers may now also be liable for travel costs to and from first appointments.
- Companies may need to consider reallocating appointments so that employees attend appointments closer to their homes.
- Companies will need to ensure that employees who may now be working over 6 hours are given a 20 minute rest break.
Currently under the National Minimum Wage Act, the formula for calculating pay excludes time spent travelling between work and home. This means there are now two different ways of interpreting working time. If the National Minimum Wage Act is changed to take into account the Tyco judgment, this could have serious cost implications for companies with low paid staff.
Chris Cook is a partner at SA Law.