The European Court of Justice decision handed down today (10 September), decreeing that time spent travelling to and from work counts as working time for some employees, could have a significant impact for employers.
In Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another the Court considered whether Spanish employees who did not have a fixed place of work could be said to be working whilst they travelled from home to their first appointment of the day and home again from their last appointment. Their employer did not class this as working time, even though the employee could be required to travel substantial distances each day in order to reach their first appointment, or to return home.
Following the Advocate General’s opinion which was given in June, the Court concluded that this time did count as working time for the purposes of the Working Time Directive. The fact that the order of appointments were decided by the employer, not the employee, seems to have been a relevant factor in the decision, as does the fact that the travelling was an integral and necessary part of the employee’s role; the decision to have employees travel from their homes rather than a branch of the employer’s business was made by the employer, not the employees and so the employees were under the employer’s direction at all relevant times, not free to do as they pleased.
The ramifications of this decision could be considerable for UK employers. The Court rejected the UK Government’s argument that this decision would increase costs for employers, taking the view that it was up to employers to decide remuneration for travelling time and this was not affected by the Working Time Regulations. This would seem to be a simplistic response by the Court and ignores the fact that for some employers, there will be a contractual right to pay employees for all working hours, which by virtue of this case, will now include time spent travelling, unless the contract is expressly amended to address this fact. This has the potential impact that thousands of employers may be in breach of contract by underpaying their employees for their total working time, once their travel time to and from their first and last places of work is taken into account.
There is also the impact of this ruling on other Working Time rights, such as the maximum 48 hour working week (unless opted out) and, more significantly, the right to certain rest breaks. Employers should review all working patterns, taking into account these additional working hours, to ensure that employees are still receiving the required daily and weekly rest breaks under the Working Time Regulations.
It is worth clarifying that this case does not open the floodgates to all employees claiming that they should be paid for travel time to and from work or, that their working hours have increased for the purposes of the Working Time Regulations. For many employees with a fixed place of work, the rules remain the same and their daily commute will not be affected by this decision. Only those employees with no fixed place of work, who travel from home to a client or customer’s premises, will now be able to include travel time in their daily working hours.
So what can affected employers do? Sadly, there is no immediate magic wand to get round this issue but there are some points to consider, to seek to reduce the impact of this case.
- Firstly, check the contractual wording in respect of pay rates for working hours. Although the National Minimum Wage does not apply to time travelling to and from an employee’s home to their place of work, the contract may need reviewing and amending to avoid any contractual entitlement to pay for those hours.
- Secondly, review working patterns to check that employees are still receiving the required Working Time Regulation rest breaks and are not working more than 48 hours per week without the requisite opt out agreement.
- Thirdly, look at the location of each visit to be carried out each day and ensure that the locations nearest to the employee’s home are allocated to the first and last appointments of the day. This will minimise the length of time it will take the employee to get there and get home, and so reduce the number of additional working hours.
- Finally, where employers have a number of sites across the country or in the region in question, consider the feasibility of employees starting work from the company’s premises each day rather than from home. Until now, requiring employees to go from home to their first appointment has been a time and cost saving measure in many cases; however, it may well be that, in the future, the simple step of having employees “check in” at a place of work each day will take the time spent travelling to and from that place of work out of the working time calculation.
If you have any concerns regarding the impact of this case on your business and would like to discuss your options further, please Get in touch