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Travel time is working time for mobile workers with no fixed base

The European Court of Justice (ECJ) has held that travel between a mobile worker’s home and the first and last customer of the day is ‘working time’.

The key European ruling may have far reaching consequences for any UK business employing workers with no fixed or habitual place of work. Employers with a mobile workforce will need to take note of this decision and its consequences for both working time and pay. 

The ruling 

The ECJ held that journeys made by mobile workers (those without a fixed or habitual place of work) between their home and the first and last customers of the day constitute 'working time' under the Working Time Directive (the Directive).

Facts

The workers in question were responsible for installing and maintaining security systems within an assigned geographical area. The employer would determine, on any given day, which customers each worker would visit. 

The dispute arose after the employer's regional office was closed. Under the workers' previous arrangement, they were required to travel to the office prior to travelling to their first customer. Travel time from that office to the first customer had been treated as 'working time'. However, following the office closure, workers instead travelled direct from their home to their first customer. The employer did not treat this travel time as ‘working time’. It was instead treated as 'rest time'. 

ECJ judgement

The ECJ held that the workers' journeys should be treated as 'working time' because they met the three criteria for 'working time' as set out in the Directive:

  • Carrying out activity - Travel to and from customers was a necessary means of providing the workers’ service to customers. Therefore the time spent travelling should be regarded as forming part of the activity of those workers. 
  • At the employer’s disposal – As the list and order of the customers was determined by the employer, the workers were at the disposal of the employer during the journeys. During that time, the workers were required to act on the instructions of the employer and were not able to use their time freely to pursue their own interests. 
  • At work – Given that travel is an integral part of being a mobile worker, their place of work could not be reduced to the customer's physical premises. Such workers must be considered to be 'at work' when using transport to travel to a customer designated by their employer, regardless of the starting point. 

The ECJ was particularly concerned about the health and safety function of the 'working time' provisions, and the fact that, if time is not considered 'working time' it is by default 'rest time'. Since the place of work varied daily according to the customer appointments arranged by the employer, the affected workers had no control over the distance and travel time between their homes and their place of work. Therefore, the necessary travel time could not be regarded as a rest period as it would undermine the essential function of such periods, being to compensate for fatigue arising from periods of work. 

Implications for business

Implications for pay

The decision does not apply to the pay of workers. This was expressly recognised by the ECJ in its judgment. Pay is dealt with by the National Minimum Wage Regulations 2015 (NMW Regulations) and the employee’s contract of employment. For the majority of workers, the NMW Regulations expressly exclude travel time between a worker’s home and the place the assignment will be carried out (or their place of work), and this is unaffected by the ECJ’s decision. 

Recent case law supports this - in a 2014 decision (Whittlestone v BJP Home Support Limited) the Employment Appeal Tribunal (EAT) held that, for mobile workers, the national minimum wage should be paid for time spent travelling between the assignments themselves, but not for time spent travelling between home and the assignments.  

Despite this, employers may come under pressure to pay workers for travel time. The ECJ’s decision is likely to bring to workers' and unions' attention the potential for them to argue that, as this type of travel time is now deemed to be working time, it should be accounted for in a worker's pay. 

Whilst the NMW Regulations are clear, the contractual wording around pay needs to be considered. For instance, arguments may be put forward that contractual overtime provisions are triggered by the extension of a mobile worker’s ‘working time’ as a result of the ECJ decision. Similarly, employees who are paid on an hourly basis may argue that they should receive payment for the additional hours ‘worked’. The strength of such arguments will rest on an analysis of the relevant contract as well as previous custom and practice. This is something we would be happy to help you with.

Implications under the Working Time Regulations

In the UK, the Directive is implemented by the Working Time Regulations 1998 (the WT Regulations) and the ECJ’s decision will apply automatically. Given that more of a mobile worker’s working day will count as ‘working time’, employers will need to ensure that they are complying with their obligations under the WT Regulations with regard to rest breaks, daily and weekly rest periods, and the 48 hour limit on average weekly working time. This is likely to have related cost consequences for employers due to the impact the decision is likely to have on how a mobile worker’s working day can be structured (and consequently how many customers or clients they can visit in a working day) to remain compliant with the WT Regulations given the extension of ‘working time’.  

Enforcement 

In the event that UK businesses do not comply with this decision, they could face claims for breach of the WT Regulations by employees or trade unions, or enforcement action by the Health and Safety Executive or Local Authority Environmental Health departments. 

Despite opposition to the decision from the UK government who argued that it would lead to an inevitable increase in costs for employers, no legal challenge is expected at present. Any such challenge would involve a lengthy procedure - it would therefore seem prudent for businesses to proceed on the basis that this decision will stand for the foreseeable future. 

Practical steps for businesses to consider taking now:

  • Review who in your workforce might be considered to be a mobile worker – examples include sales reps, technicians and carers, amongst a wide range of other employees.
  • Once you have identified the relevant workers, review their contracts and working practices. In particular, you should ensure that you are not in breach of the WT Regulations in respect of rests breaks and the 48 hour limit on average weekly working time. You may need to seek the employees’ agreement to signing a working time waiver if you do not already have one in place and this limit will be exceeded as a result of the extension of your workers’ ‘working time’. 
  • Consider what your business' position will be so that you are ready to respond to any requests for additional pay that you may receive. We can of course assist you in this respect.

For more on the decision, click here.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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