European court hands down key ruling on mobile workers and travel time

The time that workers who are not assigned a fixed or habitual place of work spend travelling between their homes and the premises of their first and last customers amounts to ‘working time’, the Court of Justice of the European Union has ruled.

In Federacion de Servicios Privados del sindicato Comisiones obreras - Tyco Integrated Security SL (Judgment) [2015] EUECJ C-266/14 Tyco did not count the time its security system technicians spent travelling between home and customers as working time, regarding it instead as a ‘rest period’.

The technicians brought a claim in the Spanish courts and the case was referred to the CJEU.

The background to the case was that Tyco had shut its regional offices in 2011 and attached all its employees to the central office in Madrid. The distances from workers’ homes to the places where they are to install and maintain systems vary considerably and can sometimes reach more than 100km. The Tyco technicians are provided with a vehicle and required to go to a weekly collection point to pick up equipment, parts and materials.

The CJEU noted that the aim of the relevant EU directive was to lay down minimum requirements intended to improve the living and working conditions of workers through an approximation of the provisions of national law, in particular, those governing working time.

“That harmonisation at EU level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods - particularly daily and weekly - and adequate breaks and by setting the maximum average duration of the working week at 48 hours, which is expressly stated to encompass overtime,” it said.

“The various requirements laid down in that directive concerning maximum working time and minimum rest periods constitute rules of EU social law of particular importance from which every worker must benefit as a minimum requirement necessary to ensure protection of his safety and health.”

The directive did not provide for any intermediate category between working time and rest periods, the court said.

The CJEU added: “….the journeys of the workers, who are employed in a job such as that at issue in the main proceedings, to go to the customers designated by their employer, is a necessary means of providing those workers’ technical services to those customers.

“Not taking those journeys into account would enable an employer such as Tyco to claim that only the time spent carrying out the activity of installing and maintaining the security systems falls within the concept of ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, which would distort that concept and jeopardise the objective of protecting the safety and health of workers.”

The court said the fact that the journeys of the workers in question, at the beginning and at the end of the day, to or from the customers, were regarded by Tyco as working time before the abolition of the regional offices also showed that the work consisting in driving a vehicle from a regional office to the first customer and from the last customer to that regional office was previously among the duties and activity of those workers.

“Yet the nature of those journeys has not changed since the abolition of the regional offices. It is only the departure point of those journeys that has changed,” it said.

The court suggested that in those circumstances, workers in a situation such as in this case, must be regarded as carrying out their activity or duties during the time spent travelling between home and customers.

The CJEU added that during the journeys in question, the workers acted on the instructions of their employer, who might change the order of the customers or cancel or add an appointment.

“In any event, it should be stated that, during the necessary travelling time, which generally cannot be shortened, those workers are not able to use their time freely and pursue their own interests, so that, consequently, they are at their employer’s disposal,” it said.

The court added that it was up to the employer to put in place monitoring procedures to avoid employees’ abusing the arrangements by conducting personal business at the beginning and end of the day.

The CJEU also agreed with the Advocate-General’s opinion that, given that travelling was an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers could not be reduced to the physical areas of their work on the premises of their employer’s customers.

The court concluded: “Point (1) of Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.”

Julian Hoskins, a partner at Bevan Brittan, said it should be noted that the decision of the court “relates to the calculation of 'working time' for the purpose of calculating workers' entitlements to rest breaks; it does not have an automatic effect on workers' entitlement to payment for the time that they are 'working'.

“Although the ECJ appeared to be persuaded by the employer's change of practice following closure of its regional office, it seems unlikely that this factor would be determinative. The key question is whether the worker is at the employer's disposal during travel time and should, therefore, be considered to be 'working'.”

The UNISON union welcomed the ruling. General Secretary Dave Prentis said: “This case rightly demonstrates that mobile workers must be paid for all their working time. This judgment is bound to have a significant impact in the UK, particularly on home care workers.

“Tens of thousands of home care workers are not even getting the minimum wage because their employers fail to pay them for the time they spend travelling between the homes of all the people they care for.

“Now thanks to this case, they should also be paid when they are travelling to their first visit, and again back home from their last.

“Having to factor more hours into workers’ timesheets will no doubt add to the pressure on employers with contracts in our public services. Ministers must now make plans for how this judgment is to be funded, and ensure that social care employers can no longer get away with paying illegal wages.”