18 September 2015

Driving to a job from home counts as part of working day, says European court

Journeys made by workers without a fixed or habitual place of work between their homes and the first and last customer of the day constitutes working time, according to a recent ruling made by the European Court of Justice (ECJ).

The ruling, which represents a defeat for the UK government’s view, is anticipated to have widespread implications for thousands of employees such as tradespeople, engineers, sales reps and carers and could lead to major changes in work and driving schedules.

The ECJ says that excluding those journeys from working time was contrary to the objective of protecting the safety and health of workers under European Union law.

Specifically, ruled the ECJ, excluding employees’ time spent travelling between home and work contravened the European Union’s Working Time Directive. The court ruled that time spent by workers travelling to their first customer of the day and home from their last counted towards the 48-hour working week and not ‘travelling time’.

Christopher Tutton, partner at law firm Irwin Mitchell, said: ‘This ruling will have significant implications for companies that employ mobile workers who spend a lot of their time travelling to different appointments. It is not just relevant to maintenance technicians, it could apply to salespeople or care workers who visit those that they look after in their homes or even employees who travel regularly overseas through work.

‘Many UK companies do not consider travel time outside normal working hours as working time, but now that the ECJ has said that it should, thousands of companies may need to make changes, for example, by ensuring that assignments at the start and end of the day are near employees’ homes, adjusting working hours generally or asking employees to opt out of the 48-hour working week. If they don't, employees could quickly exceed the number of hours that they are legally allowed to work and bosses could therefore soon find that they are operating illegally and at risk of facing costly claims against them.

‘The UK government will also be under pressure by unions and workers in relation to issues surrounding the National Minimum Wage Regulations to require employers to pay for this time. Currently, travel from a worker’s home to their place of work is not counted and does not have to be paid. Where home is their effective place of work, it will be difficult for the government to sustain an argument that time deemed to form part of a worker’s hours should not be paid for and if employers are required to pay for this, it could dramatically increase the payroll costs of businesses who employ low-paid staff.’

The Institute of Directors said the ruling would increase employment costs for scores of UK businesses.

Allie Renison, Head of European Union and Trade Policy at the Institute, said: ‘This ruling will surprise and concern many UK businesses, and indeed public-sector employers who had been following the law to the letter. The notion that the period mobile workers spend travelling between home and their first client in the morning must count as working time goes above and beyond the protections intended by the law.

‘It is a worrying development that the main source of new European labour law now seems to be the EU court. The ECJ has become a red-tape machine, tormenting firms across Europe.

‘The Working Time Directive needs to be reviewed, in order to resolve the lingering questions which are now being ruled on by the ECJ. Ensuring that employers do not have additional costs and burdens sprung upon them like this must be a core element of the Prime Minister’s renegotiation efforts.’

Dr Adam Marshall, Executive Director of Policy and External Affairs at the British Chambers of Commerce, said: ‘Once again, a faraway court is taking decisions that could impact business prospects, job creation and economic growth in the UK. Companies of all sizes will be dismayed.’

Under the directive, British employees cannot work more than 48 hours in a week unless they choose to opt out. Government guidelines say time spent travelling at work does count towards the target. But ‘normal travel to and from work’ and ‘travelling outside normal working hours’ does not. The ruling contradicts that view.

The verdict came in a case brought by employees at Spanish company Tyco Integrated Security and sister company Tyco Integrated Fire & Security Corporation Servicios. Workers who install and maintain security systems each have the use of a company vehicle for travelling every day from their homes to the various places of work and to return home at the end of the day.

The distances between the workers’ homes and the places where they carry out work varied a great deal and were sometimes more than 100 kilometres, taking up to three hours to drive. Tyco did not count the time spent travelling between home and customers – the daily journeys between the homes of the workers and the premises of the first and last customers – as working time.

Tyco calculated daily working hours by counting the time elapsing between when its employees arrived at the premises of the first customer and when they left the premises of the last customer. Therefore, only the period of work on the premises and of the journeys between each customer were taken into account.

The National High Court in Spain asked the ECJ for guidance and it has now ruled that workers travelling each day between their homes and the premises of the first and last customers designated by their employer constituted working time within the meaning of the directive.

An ECJ statement said: ‘The Court takes the view that the workers are at the employer’s disposal for the time of the journeys. During those journeys, the workers act on the instructions of the employer, who may change the order of the customers or cancel or add an appointment. During the necessary travelling time – which generally cannot be shortened – the workers are therefore not able to use their time freely and pursue their own interests.

‘In addition, the Court considers the workers to be working during the journeys. If a worker who no longer has a fixed place of work is carrying out his duties during his journey to or from a customer, that worker must also be regarded as working during that journey.

‘Given that travelling is an integral part of being such a worker, the place of work of that worker cannot be reduced to the physical areas of his work on the premises of the employer’s customers. The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer.

‘Requiring them to bear the burden of their employer’s choice would be contrary to the objective of protecting the safety and health of workers pursued by the Directive, which includes the necessity of guaranteeing workers a minimum rest period.’

Following the ECJ ruling the Spanish court will now make its decision in the Tyco case, which it is predicted could have widespread repercussions in the UK.

A spokesman for the Department of Business, Innovation and Skills said it was ‘carefully’ considering the judgement’s implications.