Federacion de Servicios Privados v Tyco Integrated Security
The European Court of Justice (ECJ) recently decided that mobile workers (i.e. those with no fixed place of work) should count the time travelling between their homes and the premises of the first and last customers as “working time” under the EU Working Time Directive. Typically most employers will discount this time, with the “working day” starting from the time the worker arrives at the first “job” and ending when the last “job“ is finished.
The claim was brought by Spanish Security installers who installed and maintained equipment at their customers’ premises. The technicians originally reported to a regional office, however, following a re-organisation in the company they travelled from their homes to various different locations where they carried out installations and maintenance and then returned home at the end of the day.
Under the company’s policy, the time spent travelling to and from the first and last job of the day was regarded as a “rest period” rather than working time because the technicians were not carrying out any maintenance or installations during these periods. The ECJ disagreed, stating that, for the purposes of the Working Time Directive, travelling to and from a non-fixed place of work should be regarded as “working time” because travelling was an integral part of the work. As the journeys in question were a necessary means of providing technical services to the customers, the time spent should be treated as forming a part of their duties.
Implications for employers
This decision is likely to have an impact on businesses who employ mobile workers.
In particular, you should consider:
- Whether your staff are now working in excess of the 48 hour working week under the Working Time Regulations, and if so, whether those employees have signed valid opt outs. You can ask all of your staff to opt out of the 48 hour working week, however, they do need to be given the option to withdraw their opt out at any time and you must not penalise them for doing so.
- If an employee does not opt out of the 48 hour working week you may need to consider a change to their working patterns to take into account their travel time. As a way of reducing travel time, you may wish to consider allocating assignments to start and finish near the worker’s home address.
- A distinction needs to be made between working hours for the purposes of the Working Time Regulations and the right to be paid for those working hours – this will depend on the terms of the worker’s contract. Whilst this decision does not directly deal with remuneration, you will need to consider the impact on the increase in working hours on your salaries so as to ensure the average hourly rate does not fall below the national minimum wage once travelling time is taken into account. Where your workers are hourly paid they may be entitled to additional remuneration for the additional hours worked.
Please do not hesitate to get in touch with us if you would like to discuss the implications of this decision on your business or how it impacts you at work. Please contact firstname.lastname@example.org (0203 008 5718) or your usual contact in the Hine Legal team.