Wednesday, April 6th, 2016
Late last year the European Court of Justice handed down a decision relating to workers who do not have a fixed place of work involving implications for many businesses.
The case was brought by a group of technicians who did not have a fixed place of work. They were assigned an area to carry out installation or maintenance and would be told where they would be going on each particular day. On some days their first or last appointments may have been up to 100km away from their home.
The employer of these technicialns considered that the first journey of the day from home to the first assignment and the last journey of the day from the last assignment to home was not working time. Indeed, this follows the non-statutory guidance issued by the Government on the same issue.
The workers considered that this should be deemed as working time on the basis that they did not have a fixed place of work.
The European Court of Justice reviewed the legislation on working time which, in the United Kingdom, is the Working Time Regulations 1998. This states that: “working time involves any period during which the employee is at work, at the employer’s disposal and carrying out their activity or duties.” The decision of the ECJ was that time spent travelling to a first destination from home and from a last destination to home should be counted as working time. The workers were deemed to be carrying out their duties when travelling to a first client because they had no fixed place or office to go to beforehand. They were at the employer’s disposal because they were legally obliged to obey the instructions given to travel to a particular place at a particular time and the employees could not use their time freely or pursue their own interests during this travel time. Finally, they were deemed to be at work as, having no fixed place of work, the journey itself amounted to work.
So what does this mean to you? this ruling covers any staff who do not work in a fixed locations so anyone that moves around and starts and ends from home. This will cover external sales persons, engineers, carers and such like roles.
It is important to remember that the decision impacts on working time for the purposes of the Working Time Regulations 1998. This means that such travel time for mobile workers must be included when determining whether an employee has been afforded the opportunity of adequate rest breaks and daily rest periods. Within the WTR there is a limit on working time of 48 hours maximum each week unless they have opted out of this.
Employers should review whether such travel time exceeds this limit. If it does, employers should ensure that an adequate opt-out is signed allowing employees to work in excess of 48 hours.
Some people have made comment that the decision may also impact on minimum wage legislation. It is suggested that such travel time should now be counted for the purpose of assessing whether an employee has been paid the minimum wage. At this time, the ruling does not extend this far, as the National Minimum Wage Regulations provides a different definition of working time. Nevertheless, this may be litigated on in the future and employers should be mindful of this going forward.
If in doubt, please give us a call.