Employment Review: July 2015 – Working time can include time spent travelling to and from home

In Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (C-266/14), the Advocate General was asked to decide whether time spent by peripatetic workers travelling between their home and their customers’ premises was “working time” under the Working Time Directive (the Directive).

Article 2 of the Directive defines “working time” as any period during which the worker is working, is at the employer’s disposal and is carrying out his activity or duties, in accordance with national laws. It defines “rest period” as meaning any period which is not working time. The Directive has been implemented in the UK via the Working Time Regulations 1998 (the Regulations). Neither the Directive nor the Working Time Regulations 1998 (the Regulations) 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 guidance suggests that “time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24-hour plumbers” is included in working time, but that “normal travel to and from work” and “travelling outside of normal working hours” are not.

Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicos SA (the companies) were security system installation and maintenance companies within the same group, each employing 75 technicians. The technicians were assigned a particular area of Spain. In 2011, the companies closed their provincial offices, and assigned all their employees to their central office in Madrid. Each technician had a company vehicle to travel from their homes to the day’s assignment, and then return home at the end of the day. The distances from their home to their assignments could be in excess of 100 km per day. The companies did not regard the first journey of the day (from home to the first assignment), or the last journey of the day (from the last assignment to home) as working time. They said this was rest time. Before the offices were closed, the companies calculated working time as starting when a technician arrived at the office to pick up the vehicle and assignment and finished when they arrived back at that office to drop the vehicle off.

The technicians brought a complaint that the companies were in breach of the Directive by not including their first and last journey of the day. In considering the Directive, the Advocate General gave his opinion that the first and last journeys of the day should be classified as working time. He set out the three criteria from the Directive that must be satisfied for time to meet the definition of “working time”, namely workers must be:

1. At the workplace.
2. At the disposal of the employer.
3. Carrying out their activity or duties.

The Advocate General dealt with the first and third criteria succinctly. He viewed travelling as integral of being a peripatetic worker, and as such a place of work cannot be reduced to the physical presence of the technicians on customers’ premises. 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”. Equally, the travel is inherent in the performance of their activities, and is necessary in order for them to provide their technical services to customers. Such travelling must therefore be regarded as forming part of the activity or duties of those workers.

The most difficult criterion to determine was whether the workers could be said to be at the disposal of their employer during the first and last journey. In the Advocate General’s opinion, the travelling is still done within the context of the relationship which links the worker to the employer. Travelling to and from customers’ premises at the start and end of the day had previously been treated by the companies as working time when the workers began and ended their working day at a fixed establishment, and the Advocate General could not see why that should change merely because the companies made a choice to organise their undertakings differently. The fact that the departure and arrival points of the daily journeys are now the workers’ homes is not relevant. Therefore, the time spent by workers travelling from their homes to the first customer and from the last customer to their homes must be considered “working time”. This is only an opinion of the Advocate General and not binding on the ECJ or the national courts and tribunals. However, opinions are usually followed by the ECJ.

Comment

Clearly, there is the opportunity for travelling time to be taken advantage of and this case is unlikely to extend the reach of working time to the majority of workers who travel to and from work. But for those companies or organisations that employ peripatetic workers, it will be as well to check existing contracts of employment, policies or agreements to see whether or not travel time to and from a customer’s premises is or is not included. If you are unsure of the position then it will be as well to take advice before you make any unilateral changes.

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