The European Courts of Justice (“ECJ”) have recently dealt a blow to thousands of employers in the UK by confirming that travel time spent by workers such as carers and tradesmen travelling to clients homes or premises, should in certain circumstances be classed as “working time”.
Currently, the usual business model in the UK in such industries is to class working time as starting from when a worker turns up at the first client of the day. The worker would then be paid from this time until he leaves the final client. As a result, the time spent travelling to and from home at the beginning and end of the working day is not classed as working time. This recent judgment by the ECJ reverses that notion and states that such travel time must be included in the working week where employees have no habitual or fixed place of work.
The case in question is Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL which for obvious reasons, we’ll call Tyco for short. This case, originating in Spain, saw approximately 75 workers who, using company vehicles, travelled from home to businesses throughout a particular geographical area in order to install security equipment. The key point in this case was that the workers were not based in a regional office and began every day travelling from home. As a result, the workers were therefore classed by their employer as beginning work as soon as they arrived at the first client of the day and not when they left home. On some occasions these clients were recorded as being more than 100km from their home.
Upon considering all of the evidence, including arguments against the workers from the UK, Czech, Spanish and Italian Governments, the ECJ ruled in the workers favour, stating that as the travel time was an integral part of the work and a necessary means of providing the service, it should be classed as working time.
What does this mean for you or your business?
Under the Working Time Regulations 1998, the average working time of a worker in the UK must not exceed 48 hours per week unless the worker has previously agreed, in writing, to opt out of such a limit. Prior to this case the 48 hour week would not have included travel time to and from the first and last jobs of the day, allowing employers to maximise time spent on clients’ premises. Following this judgment however, travel time must now, in certain similar circumstances, be factored in to the working week which could ultimately mean less time on clients’ premises or less appointments in a day for workers.
Confusion has arisen in the past week owing to a number of misreported articles in national newspapers in respect of payment for workers affected by the change. The ECJ is clear in its judgment that this change does not automatically mean that travel time should be paid. Any decision to pay workers for the time should be decided by national legislation, and at the time of writing this article, the National Minimum Wage Regulations 1999 still states that travelling between a worker’s home and work does not count as “work time” and need not be paid. There may be further challenges on this point of national law in the future, especially for those on low paid hourly wage where the additional hours take them below the national minimum wage threshold, but for the time being, the remuneration aspect remains unchanged.
It is worth reiterating that this judgment does not apply to all workers, instead it only covers those who do not have a fixed or habitual place of work.
What do you need to be doing now?
Businesses who feel they may be affected by these changes should complete a full review of their business structure, in particular the hours spent by workers travelling to and from the first and last jobs of the day. This Judgment is going to affect service to clients and customers and such situations should be carefully managed.
Where necessary, employers may request that workers opt out of the 48 hour week, however no pressure should be put on the worker to do so and in turn, workers should not be subject to any detriment for refusing to do so. Employers should also carefully monitor rest breaks to ensure that workers are receiving their full entitlement required under the Working Time Regulations.
These notes have been prepared for the purposes of this article only. They should not be substitute for taking legal advice.