Posted by Gemma Ospedale, Partner
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Travel time – Advocate General opinion that this counts as working time
In what may potentially be an important and far reaching decision for UK employers, the Advocate General has given his opinion on whether or not travel time counts as working time for the purposes of the EU Working Time Directive in relation to peripatetic workers.
In the case of Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another the Advocate General had to consider whether peripatetic workers, for whom travel was an integral part of their work and was a necessary means of providing services to the customers, formed part of their working time for the purposes of the EU Directive. The Advocate General held that it did. Although the Advocate General’s opinion is not binding, it is often followed by the ECJ which will give Judgment on this case later on this year.
The facts were these. The employer employs around 75 workers in Spain to install and maintain security equipment in homes and business premises. The workers all have a responsibility for a particular geographical area but are all assigned to the central office in Madrid. They have a company car which they use for travelling from their homes to where they carry out the installation or maintenance work and then return home. The amount of travel varies from day to day depending upon the location of the premises at which they are required to carry out the maintenance work or installation.
The employer’s policy was that neither the first nor last journey of the day i.e. from home to the first appointment and from the last appointment to home, counted as working time. It calculated the working day as running from the time at which the worker arrived at the first assignment of the day to the time that the worker leaves the premises of the last customer. The worker challenged this as being contrary to the EU Working Time Directive and a Spanish Court referred the case to the ECJ for clarification on the meaning of “working time” in this context.
The Advocate General’s opinion was that what he described as peripatetic workers, meaning those who are not assigned to a fixed or habitual place of work, and who spend time travelling from home to the first customer and from the last customer home each day, should have the travel time to and from home at the beginning and end of the day counted as working time within the meaning of article 2(1) of the Directive. He noted that the Directive only has definitions of “working time” and “rest” and nothing in between; and that there are 3 criteria which determine the classification of working time: being at the work place; being at the disposal of the employer; and carrying out the activity or duties required by the employer. In the Advocate General’s opinion, the travelling time in the case of these peripatetic workers ticked all 3 boxes.
As to whether they were actually carrying out work during the time they were travelling, the Advocate General noted that travelling is an integral part of the day’s work and inherent in the performance of the activity because they are required to travel from one place to another to carry out their work. The Advocate General was clear that they were at the employer’s disposal because they were travelling from one premises to another and from their home to a client to carry out the customers’ work which was dictated by the employer as to where they would go and whom they would service each day. The Advocate General dismissed the concern that they might use the journeys to and from work each day to carry out their own personal business because he did not consider that such a concern was enough to alter the legal nature of the journey time; and it was the employer’s responsibility, if it was concerned about this, to put certain measures in place to combat this.
This case deals with working time under the Working Time Directive but nonetheless is a decision which may have ramifications for the UK in terms of the definition of Working Time under the Working Time Regulations.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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