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Travelling to and from work?

Travel time to and from work many be considered as work time

In a Spanish case before the ECJ, it has been established that time spent by workers, who do not have a fixed place of work, travelling between their homes and their first and last appointments of the day constitutes "working time" for the purposes of the Working Time Directive.

The case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another concerned employees of a Spanish security system maintenance and installation company. The company's 75 technicians were originally based at various provincial offices around Spain. The time spent travelling between the technicians' homes and their designated office at the start and end of each day was not considered working time, and the technicians' working day was counted as starting from when they arrived at the office to pick up their company vehicle in the morning and ended when they dropped it off.

In 2011, the company closed its provincial offices, and from that point the technicians would use a company vehicle to travel directly from their homes at the start of the day to their first assignment, and then return home at the end of the day. Their task list was determined by the employer, and was communicated to them each day via a mobile phone app. The company determined that the travel time from each technician's home to their first assignment each day, and the travel time home after their last assignment, did not constitute "working time".

This was challenged by the technicians and the Spanish courts ultimately referred the case to the ECJ for confirmation as to whether time spent travelling at the beginning and the end of each day by a peripatetic worker constituted "working time" under the Working Time Directive. In the Opinion of the Advocate General, this travelling time should be considered as working time. The ECJ confirmed that the three aspects of the definition of working time were satisfied in respect of the travel time, namely:

1. A workplace criterion (to be at the workplace)

2. An authority criterion (to be at the disposal of the employer)

3. A professional criterion (to be carrying out the activity or duties)

What does this mean in principle?

The Advocate General's Opinion is not legally binding and it is open to the ECJ to come to a different conclusion but the ECJ usually follows the AG's opinion when making its decision, which is expected later this year. So although it isn't law quite yet, the likelihood is that it soon will be.

I employ peripatetic workers. What steps should I take now?

As the Advocate General's opinion will most likely become law, those who employ peripatetic workers would be wise to prepare now.

For employees who have opted into the maximum 48 hour Working Time Directive, it may be advisable to consider travelling time at the start and end of a day as working time. The Working Time Directive are mainly concerned with what constitutes working time and breaks and there is no mention of what should be paid for. Therefore if you consider the Working Time regulations alone, you could conclude that only working time should be take into account and not necessarily payment for working time.

However, under The National Minimum Wage rules, an employer must pay at least the National Minimum Wage for each hour of working time and whilst the test for determining working time is different between the NMW Act and the Working Time Regulations, it is similar enough to require payment for the time spent by peripatetic workers travelling to and from their first and last jobs of the day.

Employers may have to consider scheduling early and late appointments at sites close to employees' homes wherever possible.