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The ECJ has ruled that for workers without a fixed office, the time spent travelling to and from work should be recognised as ‘working hours’. This time has not previously been considered as work by many UK employers with a mobile workforce

The ruling was made in the recent case of Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another and is likely to have a significant impact on many businesses across the UK.

Background

Tyco is a Spanish company employing technicians to install and maintain security equipment at various locations. In 2011 Tyco closed its regional offices, resulting in some workers travelling as far as 100 kilometres to get to their first customer of the day. Workers were only required to travel to a central location once per week for the purpose of collecting tools and materials. Consequently, they were free to travel directly from home to their first customer of the day and return directly home from their last customer.

Tyco argued that, for the purpose of the Working Time Directive, the time spent travelling to and from various customers amounted to “rest time” and that the working time clock only started once the worker arrived at the relevant location. The directive, which is aimed at protecting workers from exploitation, prevents workers from being required to work more than an average of 48 hours per week and stipulates how many breaks they should have.

The Decision

The ECJ ruled that “the fact workers begin and finish the journeys at their home stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves”. The court concluded that requiring workers to bear the burden of their employer’s choice of location would be contrary to the objective of protecting the safety and health of workers.

Whilst the court recognised Tyco’s concern that workers might conduct personal business at the beginning and end of the working day, the court ruled that such concern cannot affect the legal classification of travel time. Instead, employers must put into place necessary monitoring procedures to avoid potential abuse. The resulting administrative burden must be balanced with the company’s decision to abolish a fixed place of work.

Impact on Employers

Employers must be aware that this decision could have a significant impact on their obligations under the Working Time Regulations 1998. For example, it could increase employees’ total average working time to more than the 48 hour limit (unless the employee has voluntarily consented to opt out of this provision) or exceed their contracted working hours. Daily and weekly rest periods will also be effected.

This decision will also clearly result in an increased financial burden on employers, particularly when the national living wage is introduced in April 2016 which will increase the minimum wage to £7.20 per hour.

  1. Employers with staff with no fixed office will need to recover and implement changes to remuneration structures to reflect travel time.
  1. Practically, employers will want to ensure workers schedules are organised to ensure that their first and last appointments of the day are close to their home to reduce the burden of travelling.
  1. Finally, employers will need to check if employees are working greater than 48 hours per week including travel time and if so, get employees to sign an opt-out agreement of the 48 hour maximum working week.

The decision will affect many businesses across the UK particularly those in construction, sales and the care sector, who often have mobile workforces rather than staff based at a fixed office.

For more information on Employment Law please contact Tom Evans on 0151 2301217 or email tom.evans@dtmlegal.com

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