11th September 2015

INFORMATION UPDATE

 Issue No.  2015/15

 Sentient
              

 

Is Home to Work Travel Working Time?   It might be!

If your employees do not have a dedicated work place, The European Court of Justice (ECJ) has decided that journeys made by mobile workers must count as working time.  This could have significant implications for companies that employ mobile or peripatetic workers.  Key sectors would include Domiciliary Care providers and employers with home based field sales or support/technical teams.

The decision refers to the case of Spanish security system installation company Tyco Integrated Security SL whose technicians use company vehicles to travel to appointments across Spain. The employer had argued that the first journey of the day (from home to the first appointment) or the last journey of the day (from the last assignment to home) did not count as “working time”.

The technicians brought a claim, and the Spanish courts referred the case to the ECJ to consider whether the travel time at the start and end of the day was officially working time.

The Court ruled: “Where workers, such as those in the situation at issue, do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the directive".

It said that not taking the journeys into account would mean Tyco could claim that only the time spent actually installing and maintaining security systems was within the concept of “working time”, and that this would jeopardise the health and safety of its workers.

Implications on Working Time

The ECJ added that, because the workers are “at the employer’s disposal” for the time of the journeys, they act under their employer’s instruction and cannot use that time freely to pursue their own interests.

This decision will have implications for many British employers and mean that they will have to ask staff to opt out of the Working Time Directive’s 48-hour working week and/or ensure that assignments at the start and end of the day are near employees’ homes.  Good journey planning should minimise the impact but they may also need to adjust working hours generally.  If they do not, employees could quickly exceed the number of working hours that they are legally allowed to work with employers facing potentially costly claims against them.

Employers engaging peripatetic workers that may be particularly affected include, for example, employers in the care sector and employers of staff whose primary duties are to carry out customer or client visits which may include travelling sales representatives, domestic heating engineers, home based consultancy providers.

Any Impact on Pay?

It is important to note that in coming to this decision the court had in mind the Working Time Directive which in the UK is implemented through the Working Time Regulations.  The salient point being that the first and last journey of the day must now be included in the calculation of working hours but only with regard to what hours count for the 48 hour week and what arrangements need to be in place when considering what break times are needed and how the length of each working day is arranged.

In light of this decision it would be easy to also conclude that these first and last journey hours are also now to be considered as paid time with implications for the national minimum wage and hourly rate or salary uplift implications.  But - holdfast me hearties - this is a totally separate matter and in the UK the National Minimum Wage Regulations are national not European legislation.  The hours taken into consideration are not the same as those for working time purposes.

At this point in time the decision does not affect how employers remunerate employees for travelling time. But watch this space.  We will report further when the dust has settled  and a better understanding of the implications into other areas of the employment relationship are achieved.

What to do next

For now, a practical step will be to ask all employees who average (over 17 weeks) 'working time' is likely to exceed 48 hours per week to sign an 'opt-out' agreement.  They don't have to agree and you cannot punish them if they don't.  As always take advice on any specific issue you are presented with.

If you need help please call us on 03456446006


 

 

 

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The advice and comment in this update is not meant to be an authoritative statement of law. The articles and summaries should not be applied to any specific set of facts and circumstances without seeking further advice. Whilst every care is taken to ensure that the content is correct Sentient cannot accept responsibility for the accuracy of statements made nor the result of any actions taken by individuals after reading such.

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