European Court decision on Commuting Time
Natalie Ruane, Partner within the firm’s employment & HR team, discusses a Spanish case concerning commuting to work.
Last month there was quite a lot of coverage of the decision from the Court of Justice of the European Union (CJEU) in the case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another which covered the question about what should and should not be classed as working time when looking at commuting.
The case actually involved two associated Spanish companies, the business of which was the installation and maintenance of security systems. It has some slightly unusual background facts but it will have implications for some businesses in the UK, particularly those employing sales people or technicians/engineers working at a distance.
Until 2011, the technicians employed by the two companies were assigned to work from provincial offices. When the companies then closed those offices, they nominally attached all the employees to their central office in Madrid.
Before the closure of the provincial offices, the technicians travelled from home to those provincial offices to collect a company vehicle before setting out to travel to a series of appointments, as directed by the companies, where they were to carry out the installation or maintenance work. After the closure of the provincial offices, the technicians simply travelled, in a company vehicle, from their respective homes directly to the first appointment, again as directed by the companies. At the end of the day they would return directly home from their final appointment. The length of such journeys could vary greatly but examples were given of journeys exceeding 100 kilometres and taking more than three hours in each direction.
Prior to the closure of the provincial offices, the time travelling from home to those offices was not counted as working time but the companies did regard the travelling time between the office and the first and the last appointments as being working time. Following the closure of the provincial offices, the companies decided that travelling time between home and the first appointment and home and the last appointment would not count as being working time. The technicians brought a claim in the Spanish Court which then referred to the CJEU the question of whether that travelling time to and from the first and last appointments constituted working time or a rest period.
Article 2 of the Working Time Directive (WTD) defines working time as being any period during which the worker is working, at the employer’s disposal and carrying out activity or duties for the employer. The Directive is translated into UK law by the Working Time Regulations (WTR), which apply a similar definition: ie any period during which the worker is working, carrying out duties for the employer and at the employer’s disposal. Whether by reference to the Directive or the Regulations, all three criteria must be met for the travelling time to be defined as working time.
Neither the WTD nor the WTR mention anything about whether travel to and from a place of work (or for that matter between places of work) should be considered as working time. This can be covered in an agreement such as a collective agreement with a recognised trade union but it is often a matter of contract between the employer and the employee.
Guidance issued by the Department of Business Industry and Skills suggests that time spent travelling for workers who have to travel as part of their job, e.g. travelling sales representatives or 24-hour plumbers, is included in working time whereas what is referred to as "normal travel to and from work" and "travelling outside of normal working hours" are not. That guidance reflects the general attitude in the UK that travelling to and from the place of work will not normally be included as working time because the worker does not fulfil one or more of the above criteria of working, carrying out their duties or being at the employer’s disposal during that time. There is also a practical consideration that the employer has no control over how long the worker spends commuting to their place of work as this will depend upon where the employee chooses to live.
Looking at the facts in the Tyco case, the CJEU decided that:
- The workers must be regarded as carrying out their activity or duties while travelling to and from customers. This was because, in this case, the first and last journeys of the day to customers were regarded as working time before the regional offices had been abolished and the nature of those journeys had not changed. The only change had been their departure points.
- For a worker to be at the employer’s disposal they must be required to be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately if needs be. Tyco was able to change the order of the customers or cancel appointments at any time. If that happened the workers would be required to react to those instructions during their first and last journeys. In any event, they were not able to use their time freely or pursue their own interests during travelling time and they were therefore at their employer’s disposal.
- If a worker does not have a fixed place of work and is carrying out their duties on journeys to and from customers, that worker must be regarded as working on that journey. The fact that the journeys might start and finish at the worker’s home is irrelevant. In this case, it was simply a consequence of the company’s decision to abolish its regional offices. The workers had lost the ability to determine the distance between their homes and their usual place of the start and finish of the working day and therefore could not be required to bear the burden of their employer’s choice to close the regional offices.
The question for business in the UK is whether the facts of the Tyco case are sufficiently similar to the operation of their businesses so as to create a risk of claims that the time taken to travel from home to the first and last appointment should be classed as working time.
To answer that question, the starting point should be whether the workers have a base that they travel to before starting their duties. If so, then provided the time after the employee reaches the base is working time, this Spanish case is unlikely to be of any relevance. Starting work from that base focal point will mean that employees still have the ability to determine the distance between their homes and the usual place of the start and finish of their working day.
There is, however, also a consideration about whether the employer has the ability to interfere with the employee’s freedom as to how that journey to and from work is made such that the employee could be said still to be under the employer’s control during that journey. This is likely to be fairly rare but employers who retain that level of flexibility should be more cautious.
Although the Tyco Judgment will inevitably have implications for certain businesses in the UK (for example, those employing sales representatives or working in the care sector, where workers will often travel directly from home to and from the first and last appointments), it is unlikely to have the widespread application that the press coverage of it might have suggested.
Nevertheless anyone with questions about how the case might impact upon them or their business model should contact Natalie Ruane at Burnetts solicitors on 01228 552222.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Monday 28th September 2015