Should travel time be included as working time?

It may be ‘Drive Time’ on the radio; but it may also be working time…and paid too. A recent Spanish Court case will impact on businesses employing mobile workers.

A Spanish Court case has concluded that employees who travel from home straight to a client’s business address were doing so within ‘working time’ under the EU’s Working Time Directive. The decision may impact on both working time limits and wages.

In Federacion de Servicios v Tyco Security Technicians employed by two security system installation companies were each assigned to a particular area of Spain. In 2011, the companies closed their regional offices, and assigned all employees to a central office. The technicians used a company vehicle to travel from their home to the place where they carried out their work assignment. They rarely visited the central office at all. The travel distance from home to the various assignments varied day by day. Such arrangements are common within the UK.

However, the employers didn’t regard the journey from home to the first assignment, or the journey from the last assignment to home, as ‘working time’. They calculated the working day as starting from the time at which the technician arrived at the first assignment and ending at the time they left their last assignment. Before the regional offices were closed, the employers calculated working time as starting when a technician arrived at the office to pick up their vehicle and finishing when they arrived back at that office.

Under the new arrangement, the technicians brought complaints that the employers were breaching the Working Time Directive by not including time spent on their first and last journeys of the day in working time calculations. The case came before the European Court of Justice (ECJ) on the question of whether time spent travelling at the beginning and end of the day by a mobile worker who is not assigned to a fixed place of work is ‘working time’. The Directive is incorporated into UK law by the Working Time Regulations.

The ECJ have indicated that such journeys do amount to ‘working time’, given three aspects of the definition of working time were satisfied:

• Travelling is an integral part of being a mobile worker. When such workers use a means of transport to go to a customer designated by their employer, they must be considered to be ‘at work’.
• Such journeys are subject to the authority of the employer, in that the employer could choose to change the order of customers or cancel an appointment, or require workers to call on additional customers on the way home. Workers are therefore ‘at the disposal’ of the employer.
• Since the workers’ travel is inherent in the performance of their activities, it must be regarded as forming part of their ‘activity or duties’.

This case is likely to have serious implications for those who engage mobile workers with no fixed place of work. Employers who do so will need to ensure that they maintain an accurate record of time spent travelling by such workers, in order that the limits on working time are not exceeded without an employee agreeing to ‘opt out’ of the maximum 48 hour working week.

Although the case is concerned with ‘working time’ it may also impact on pay as well. Hourly paid employees engaged on terms that do not exclude ‘travel to work’ time as ‘paid time’ may bring claims for pay at their hourly rate including backdated claims for up to six years in the County Court or two years within the Employment Tribunal.

Organisations employing mobile workers should urgently review their working arrangements and employment contracts to ensure compliance with Working Time and contractual obligations.

Specialist legal advice on the issue can be obtained from Howard Robson (Employment Partner) at Warner Goodman LLP.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.