September 4, 2015

Does travel time count as working time?

Travel on bus

From construction to home care, many employees are required to work on different sites as part of their role, often travelling straight to site from home. Many employees have employment contracts which state that working time starts when they arrive at site, or at a specified distance from site. On the face of it this seems logical, as employees who attend the same place of work each day are not paid to commute to work.

Recommendation by Advocate General

However, in a recent case in the European Court of Justice, a legal recommendation has been given by the Advocate General, which says that travel to and from site may count as working time.

This case involved technicians employed by a Spanish Company to install security equipment, who were given jobs each day which required travel to different client sites. They were paid from the time they arrived at the first site, and their pay ceased when they left the last client site.

When does travel time count as working time?

The Advocate General’s opinion is that workers who are not assigned to a fixed or usual place of work are on working time when travelling to the first site or customer and when travelling home from the last site or customer. He argues that this is working time because:

1. travelling was a "necessary means of providing their services" to the customer and was therefore an "integral part" of their job

2. they were travelling to customers specified by their employer. They were "at their employers’ disposal" during this travel time, as the journey and distances were at the request of their employer to provide services for its benefit, and

3. for workers not based at a fixed site, travel is an integral part of their work.

This is only an advisory legal opinion, and the European Court of Justice will decide the case shortly. However the courts usually follow the Advocate General’s opinion.

What should employers do?

If this opinion is upheld by the European Court there are likely to be legal challenges in the UK to similar contracts. Employers should consider forward-planning to meet the potential costs of compliance.

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