By Andrew Knorpel on 24 September 2015
According to the European Court of Justice, there are only two types of time – working time and rest time. At least that’s the case for the purposes of the Working Time Directive and therefore our own Working Time Regulations.
Some engineers working for Tyco in Spain had no fixed place of work (their local office having closed) and were based at home. They argued that their working time (for the purpose of working out their entitlements under working time legislation) included their travelling time from home to their first customer and back home from their last customer. Tyco argued that this time was not working time, but the engineers didn’t see it that way.
The ECJ agreed with the engineers as, during travelling time, they were working, at their employer’s disposal and carrying out their activities or duties during this time. At the end of the day (and come to think of it, also at the beginning), Tyco chose the order of their appointments and could unilaterally cancel or add appointments.
Please note that this case does not affect travel to and from a normal place of work which will still not be counted as working time. It also does not directly relate to pay as this would depend upon an employee’s contract of employment and the rate agreed, if any, for travelling time to or from home, subject of course to workers receiving at least the national minimum wage (not for each hour worked, but when averaged over the whole pay reference period).
There may be some knock-on increased costs if an employer was required to change its shift patterns to counter mobile workers reaching the 48 hour average maximum weekly working limit when travelling time is included (assuming they haven’t opted out) or having to re-arrange their breaks to ensure they have sufficient daily or weekly rest periods.
Finally, in order to limit increased travelling time, you may also wish to ensure that any field-based staff are contractually required to live on (or within a few miles of) their sales or service territory, permitting relocation only with the employer’s consent (not to be unreasonably withheld).