The Advocate General (AG) has provided his opinion in a Spanish case regarding whether or not working time should include travelling time at the start and end of the working day. In the tongue twisting case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, the Claimants were a group of technicians working from home and travelling to Clients' sites using a company vehicle. As is typical with this sort of working arrangement (in particular the care sector), the employer did not count the time that the employees spent travelling from their homes to their first assignment or from their last assignment back to their home as working time. This was challenged by the employees union and the issue was referred to the European Court of Justice (ECJ) by the Spanish Courts.
The AG's opinion is that this travelling time does amount to working time under the directive. If the ECJ agrees with the AG (which is often the case, although the AG's opinion is not binding), this decision will have huge implications for UK employers. The ECJ will hand down its final Judgment later this year. The AG reviewed the definition of working time and noted the three criteria, which are:
- A work place criterion i.e. to be at the work place;
- An authority criterion i.e. an worker to be at the disposal of the employer; and
- A professional criterion i.e. a worker to be carrying out the activity or duties.
The AG was satisfied that travelling to the first appointment and home from the last appointment met the relevant criteria of working time. The Working Time Regulations 1998 (which implements the directive into UK law) does not specify whether travel to and from a place of work or between places of work should be considered working time. In fact, non statutory guidance from the government suggests that time spent travelling for workers who are required to travel as part of their job (i.e. sales representatives or plumbers for example) is included in working time but that normal travel to and from work and travel outside normal working hours, is not.
Once this decision is confirmed and if it follows the AG's opinion, it is likely to have a big impact for employers whose workforce are required to travel, needless to say the impact to businesses could be huge.
Stay tuned for further developments.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.