Travel time is now work time for some mobile workers

With the recent ECJ ruling on travel time for Mobile workers, we asked Richard Parr, Partner at Blacks Solicitors about the implications of this change to the Working Time Directive.

There’s a Taoist saying: “The journey is the reward”. For field-based workers, a court decision handed down recently by the European Court of Justice (ECJ) gives tangible effect to that earlier saying.

A traffic-clogged daily commute to and from our place of work is all too familiar to many of us.  The fact that we aren’t paid for the time wasted in that commute merely rubs salt into the wound.  Can that commute ever be categorised as “working time” and therefore paid for?

For time to be classed as ‘working time’ the employee or worker must be

at the work place;
at the employer’s disposal; and
engaged in work duties.

That explains why, for most of us, the daily commute can never be “working time”.  For travelling workers such as delivery drivers and salesmen, the chances are that they are regarded as “working” from the moment they leave home: the first requirement is fulfilled because travelling is an integral part of the job, the second as long as routes and destinations are determined by the employer, and the third if travelling is integral to the role.  But that will be fairly academic if the individual in question is salaried.

What of other workers who have no fixed place of work and who are paid by the hour only for “working time” – for example, a worker who visits a client’s home as part of a domiciliary care package?  Historically, the view was that for such a worker time spent travelling to the first appointment of the day, and back home after the last appointment, was not “working time” and therefore fell outside legislation such as the Working Time Regulations (WTR) and the law relating to minimum wage.

However, in the case of Federacion de Servicios del sindicato Comisiones Obreras, the ECJ has expressed the view that where workers are not assigned to a fixed place of work, time they spend travelling to and from their first and last customers counts as ‘working time’ for the purposes of the Working Time Directive.

Courts and Employment Tribunals are required to construe domestic legislation (for example, WTR) so as to comply with the Directives from which the legislation is derived, so it seems likely that the ECJ’s forthcoming decision will soon affect the way we must interpret and apply to WTR. If your staff are salaried and they’ve signed a waiver of the WTR ban on a working week which exceeds 48 hours you are probably OK. But if your staff haven’t signed waivers and, worse still, they’re hourly paid, then you may have both regulatory as well as financial problems.

That all sounds pretty bad. Surely it couldn’t get worse?

Well, an implication of the decision which commentators are still trying to assess is in relation to possible impact on National Minimum Wage (NMW).

The regulations which govern NMW expressly provide that time spent travelling between home and the employer’s place of business is not working time for the purposes of NMW. However, inroads have been made by Employment Tribunals into the concept of what is and what is not working time for NMW purposes.

For example, a care worker who is required to stay at a service user’s home, and who may not leave during their shift, will be classed as working for NMW purposes even if they are permitted to sleep and are in fact sleeping throughout the shift. The cases on the point have found that as the worker is not free to be elsewhere, even time spent sleeping may be part of the job which the worker is engaged to do.

Given that this latest decision by the ECJ is based on the idea that an itinerant worker is at the employer’s disposal when travelling to the first appointment, it is difficult to reconcile this case and the “sleeping” cases with the NMW provision which says time spent travelling to work is not working time.

When one adds in the requirement that UK courts and tribunals must so far as possible construe UK legislation so as to comply with EU legislation, it becomes clear to see why there is a growing body of opinion that this latest ECJ case will be interpreted as applying to NMW. It would be surprising if a trade union didn’t seek to test this point.

If you have a peripatetic workforce who work from home what can you do? Good legal advice would be an excellent start. And whether you provide vehicles or require workers to provide their own, a cutting edge vehicle tracking system which gives reliable information about what your boys and girls are up to may be another wise investment.

Richard Parr
Partner
Employment Department
[email protected]