The right to be paid for travelling to and from work

Those workers who do not have a fixed or habitual place of work are now set to benefit from the latest ruling by the European Court of Justice (ECJ). The case of Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another, considered the time spent travelling each day, by mobile or “peripatetic ” workers, between their homes and the premises of the first and last customers of that working day. The matter in issue being whether this time constituted “working time” under the Working Time Directive (the Directive). If so, did the workers have the right to be remunerated for this time?

Under the Working Time Regulations, British employees cannot work, on average over 17 week period, more than 48 hours per week unless they chose to opt out, and under UK Government guidelines, time spent travelling while at work does count towards this total. However, normal travel to and from work and travelling outside normal working hours does not.

This latest court ruling could change all that. The ECJ has now found that where travel is inherent to the performance of a job for peripatetic workers, this will be considered as work, and therefore, “working time”. Article 2 of the Directive defines “working time” as any period during which, in accordance with national laws and/or practices, the worker is:

• at work;
• at the employer’s disposal; and
• carrying out the activity or duties of their job.

In this particular case, the court found that all three elements were present and for the relevant workers:

1. travelling is an integral part of being a worker without a fixed or habitual place of work;
2. the workers are required to be physically present at the place determined by the employer, and be available immediately as the case may be; and
3. a crucial part of the job is to go to customers designated

This is a very important development for employers to be aware of because the UK Courts and Employment Tribunals must interpret UK law in a way that is consistent with the Directive. This is especially relevant for employers within the care trade, plumbing, decorating and other similar trades. Whilst this decision is not directly concerned with the national minimum wage, it may also have implications for what employees have to be paid. Employers remain free to determine the remuneration for the time spent travelling between home and customers. Such remuneration is not subject to the Directive but only to national law.

If you have any further queries about this or require any further assistance on employment law matters in general, please contact Nick Smith at nsmith@mincoffs.co.uk or 0191 212 7739 or Robyn Shepherd at raisbitt@mincoffs.co.uk or 0191 212 7717.