Does travelling time count as Working time where the employee has no fixed place of work?
Advocate General Bot has given his opinion in a case before the European Court of Justice in the Spanish case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another C-266/14 ruled that workers with no fixed place of work, time spent travelling from their home to their first assignment, and from their last assignment back to their home, constitutes working time under the Working Time Directive.
Working time is defined as any period during which a worker is working, is at the employer’s disposal and is carrying out his activity or duties, in accordance with national laws and practice (Article 2, Working Time Directive (2003/88/EC)) (the Directive). The Directive also defines a rest period to be any period which is not working time. The Directive is implemented in Great Britain by the Working Time Regulations 1998 (WTR).
Neither the Directive nor the WTR say anything about whether travel to and from a place of work or between places of work should be considered as working time. Non-statutory government guidance suggests that time spent travelling for workers who have to travel as part of their job, such as travelling sales representatives or 24-hour plumbers, should be included in working time, but that normal travel to and from work and travelling outside of normal working hours should not.
The facts in this case were as follows:
- Two companies, T, that installed security systems, assigned their technicians to a particular province or area. The technicians used company vehicles to travel from their homes to the places where they carried out installation or maintenance, and then returned home at the end of the day.
- T did not regard the journey from home to the first assignment (the first journey), or the journey from the last assignment to home (the last journey) as working time. They regarded this as rest time. The technicians’ union, F, brought a complaint in a Spanish court that this breached the Directive.
- The Spanish court stayed proceedings. It asked the ECJ whether time spent travelling at the beginning and end of the day by a worker who is not assigned to a fixed place of work (peripatetic worker) was working time, or a rest period.
Advocate General Bot gave his opinion that the first and last journeys of the day should be classified as working time.
There are three criteria in the Directive that must be satisfied for time to meet the definition of working time. A worker must be:
- At the workplace.
- At the disposal of the employer.
- Carrying out his or hers active duties.
Travelling is an integral part of being a peripatetic worker, and so a place of work cannot be reduced to the physical presence of the technicians on customers’ premises. When peripatetic workers use a means of transport to go to a customer designated by their employer, they must be considered to be at work. This travelling must also be regarded as forming part of the activity or duties of those workers.
The technicians’ journeys were subject to T’s authority, as they could choose to change the order of customers or cancel an appointment, or require the technicians to call on an additional customer on their journey home. So, they were also at T’s disposal for the purposes of the Directive.
There is little case law on this point but the AG followed Skills Motor Coaches as, although that case concerned the EU’s tachometer regulations, contextually the point was the same. However, it should be noted that this decision is limited to situations where the employee has no base but leaves home and is performing part of his duties, such as driving to deliver goods or to visit clients, immediately when he gets in the lorry or car. In the UK, like many EU countries, the time spent driving from home to a place of work does not count as working time.
This opinion is not binding in the UK, although it has persuasive value. It remains to be seen whether the ECJ follows this approach set out by Advocate General Bot.