This was a headline on the front page of a newspaper recently that would no doubt have grabbed all workers’ attention! The headline relates to a recent European case in which it was held that travelling to work was considered ‘work’, but note, that this is not usually the case; time spent commuting to work is not normally considered as ‘working time’.
In this particular case, technicians used a company vehicle to travel from their homes to customers in order to carry out security installation and maintenance for their employer and to return home at the end of the day. The distances from their homes to their customers varied, and were sometimes more than 100km.
The employer did not regard the time spent travelling from the technicians’ homes to the first customer or from the last customer to home as working time. This was the case even when the employer closed its regional offices and assigned all its employees to its central office in Madrid so that they no longer had a fixed or habitual place of work. The employer instead sent the employees details of their assignments via an application on a mobile phone; they no longer had to attend the workplace to obtain that information.
The employer therefore calculated the working day as starting from the time the technician arrives at their first customer, and ending when they leave their last assignment. The employees argued that their employer was breaching the working time rules by calculating their working time this way and the European Court of Justice (ECJ) agreed.
Working time is defined as when a worker is working at their employer’s disposal and carrying out their employer’s activities and duties. The ECJ decided that the time spent travelling to and from customers was working time within this definition as they were legally obliged to follow their employer’s instructions and carry out their activity for the employer. The technicians were not able to use that time freely or pursue their own interests during that travelling time.
Therefore, if a worker does not have a fixed place of work and is carrying out their duties on journeys to and from their customers, that worker is regarded as working on that journey.
This decision could have a significant impact on businesses that use mobile workers such as sales reps, carers and gas engineers who do not have fixed or habitual places of work. This is because it is likely that they will now have to pay for all journey times, to and from customers, as it will be classed as working time. How such working time should be paid however, was not covered!
Liz Pollock is an associate and solicitor in Raworths’ Employment unit. To contact Raworths telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate, HG1 1HF. Alternatively, you can email Liz – firstname.lastname@example.org