Posted by Gemma Ospedale, Partner
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Travel time and peripatetic workers
The case of Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, the Advocate General’s Opinion on which was reported in a recent edition of the Update, has come before the ECJ, which has now issued its judgment. The ECJ has ruled that time spent by a worker without a fixed place of work in travelling between their home and the first and last work assignments should be counted as ‘working time’ for the purpose of protecting workers’ safety.
Tyco employed around 75 workers in Spain to install and maintain security equipment in homes and business premises. The workers were originally based at regional offices from which they collected a company car to travel to various appointments throughout the day. They returned to the regional office after their last appointment. The company then decided to close its regional offices and required workers instead to drive directly to clients’ premises from their homes. The Company’s argument was that travel time to and from a worker’s home and the first and last assignments of the day, did not count as working time under the Working Time Directive as workers were not carrying out their duties during this time, and that only time spent travelling between various assignments in a day counted.
The ECJ disagreed, on the basis that, as there was no fixed place of work, there was no difference between the travel time between assignments and that spent travelling to and from home at the beginning and end of each day; therefore both periods should be treated the same. The Court stated that, to do otherwise, would mean an employer such as Tyco could also avoid the time between assignments counting as working time, which would severely prejudice the worker’s rights to rest breaks and holiday, both of which are calculated by reference to the amount of time worked. Such an argument, it held, “would distort that concept and jeopardise the objective of protecting the safety and health of workers” – hence this was working time.
The ECJ took into account the Advocate General’s Opinion that travelling was an integral part of being a worker without a fixed or habitual place of work – “peripatetic workers”, as defined in the Advocate General’s Opinion (an expression which, although not expressly referred to in the judgment, was not disagreed with). Workers were not free to choose the location of their home in proximity to their work, because they could be sent to different locations each day to perform their duties, some of which could be many miles from the worker’s home; in contrast to travel to a fixed office base each day where it is the worker’s choice whether to live closer or further away.
The court judgment relates to the calculation of working time under the Working Time Directive, as implemented in the UK under the Working Time Regulations 1998. It does not affect the calculation of workers’ pay under the National Minimum Wage Regulations 1999 which sets out the minimum hourly rates of pay for workers in the UK. The judgment made it very clear that it was not dealing with whether or not the workers should be paid for this time – just whether or not it counted as “working time”. It stated that any issues of pay are for the Member countries to determine as they see fit.
This judgment is important as it enhances worker protection in relation to working time. It may have an effect on those workers who have not opted out of the 48 hour working week, and it may also affect the calculation of holiday and rest periods. Workers in the care and service industries who have no work base and are required to attend different client premises direct from their homes may benefit from this ruling.
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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