15/09/15

Travel to First and Last Clients of the Day is Deemed Working Time

In Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another, the European Court of Justice (ECJ) considered whether time spent travelling by workers without a fixed office should be regarded as working time.

Background

Tyco (comprised of Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Services SA), a company which installs and maintains security systems at customers’ premises in Spain, shut down its regional offices in 2011, assigning all of its employees to one central office in Madrid.

Due to the nature of the company’s work, employees are required to travel to various locations with varying distances. However, following the shut down of the regional offices, there is no requirement for employees to attend a central location on a regular basis.

Following the shut down each employee was provided with a vehicle to travel from their homes to the places where they carry out installation or maintenance, and then to return home at the end of the day.  Distances travelled could often be more than 100km.

Before the regional offices were closed, employees were required to pick up their vehicles (and corresponding task list) from the office each morning and drop it back at the end of the day. As such, Tyco calculated working time as starting when a technician arrived for pick up and finishing when they arrived back to drop off the vehicle.

Tyco did not regard the first journey of the day i.e. from home to job number one, or the last journey of the day as working time. The working day was subsequently calculated from the time the employee arrived at their first job, and left their last job.

The employees brought a complaint through their union that the company was in breach of Spanish working rules by failing to include the time spent on their first and last journey.

Issues

Tyco argued that the travelling time was a “rest period” rather than a working period. The employees were not carrying out instalment or maintenance work during this time. Tyco further argued that their employees had the individual autonomy to make decisions as to their itinerary and this put them outside the boundaries of the EU’s Working Time Directive.

Decision

The Court disagreed with Tyco and confirmed that the three aspects of the definition of “working time” had been satisfied.

The Court explained that the employees were “at the disposal” of their employer – they were required to be physically present at a place determined by Tyco in order to provide the appropriate services to a customer.

Although the workers were free to choose their travel route between their home and first/last job, the company were able to change the order of appointments or cancel them as required.

The employees were not able to use their time freely or pursue their own interests – it was therefore not a rest period. The Court emphasised that to consider it as such would “distort that concept and jeopardise the objective of protecting the safety and health of workers” as laid out in the European Union’s working time directive.

Consequences for Employers

The decision could have a huge impact on the UK business industry particularly for the likes of care workers, gas fitters and sales reps.

The ruling and its consequences could also significantly increase the amount of time in an employee’s day that is counted as work.

British companies may find themselves forced to hire more workers to ensure that they are compliant with the EU working time regulation which highlights that no employee works more than an average 48 hours a week, unless they have opted out of the Regulations. This will inevitably result in additional costs for businesses alongside an interference with long-established practices in relation to travel.

Interestingly, it has also been suggested that this ruling could force companies to pay higher salaries to avoid breaking minimum wages laws. However, this has been refuted by others who have explained that the national minimum wage is a UK right, not a European right.

In a nutshell, the reality is that this judgment amounts to a huge tightening of European labour rules. Employers need to have a heightened awareness of the number of hours being worked by their employees including travel time which may not previously been considered, and ensure that they are conscious of the need to organise work schedules to make certain workers’ first and last appointments are close to home.

15/09/15

About the author

Kitsons Solicitors - Jayme Nicholson

Jayme NicholsonPartner / Head of Employment

Jayme is a Partner and Head of our Employment team

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