Effect of the ‘travel time’ CJEU Ruling on Mobile Employees in the UK

A recent ruling by the Court of Justice of the European Union (CJEU) has stated that the time that employees spend travelling between home and their first and last places of work each day counts as “working time” – but only for those employees with no fixed place of work. However, while it counts as time those mobile employees spend at work, it does not necessarily equate to an entitlement to extra pay.

A peripatetic workforce, with no central office to report to

As the European Union’s highest court, the CJEU was hearing a case referred from Spain. A group of technicians employed by Tyco instigated legal action to argue that when travelling to their first and last assignments of the day, they were already at work. Their job role was to install and maintain security equipment at the premises of Tyco’s customers, which could be at distances of up to 100km from their principal residences. They had no fixed location of work, nor did they report to a central office to be told of their assignments for the day. Each technician travelled from home to the first client they had been allocated.

The CJEU determined that the travelling time – from home to the first job and from the final job of the day to home – constituted time at work for the technicians. Without any fixed place at which to report, the employees – or the peripatetic workforce – were required to travel varying distances before even arriving at “work”, with the time taken therefore fluctuating greatly.

Dramatic impact expected

A raft of media reports of the case has suggested that the effect on businesses will be dramatic. However the reality is that the fact the travelling time constitutes working time does not necessarily equate to a requirement for the employees to be paid more; whether or not they are entitled to increased pay will depend on their individual contracts.

The crux of the case is whether the time spent counted for the purposes of the Working Time Directive (WTD), and the Working Time Regulations (WTR), which give effect to the WTD in the UK. This legislation does not govern the pay awarded to employees, rather it is concerned with the way the workforce is organized; the average weekly work hours, rest periods, rest breaks and minimum holiday allowances. Issues of pay are dealt with in separate laws in the UK, namely the National Minimum Wage Act. Further, the CJEU expressly stated that it would be for national legislation to determine if under domestic law, the workers should be paid for those extra hours.

The National Minimum Wage Act and corresponding Regulations set out the general position that travel time between home and an individual’s place of work is excluded from the obligation to pay the minimum wage, including for mobile workers. This position has also been reflected in UK case law.

Accordingly, while the national laws do not require an individual to be paid for such hours, the specific wording of an employee’s contract could entitle them to pay. Arguments that could be raised include that an employee is to be paid for all “hours of work”, or that overtime rates are triggered during what were previously treated as standard working hours. Trade Unions may also begin to look for ways to pressure larger employers to pay for this type of travel. However, the issue of pay will remain down to the wording used in the contract terms and how they are to be construed. IBB’s specialist employment lawyers can assist in determining the extent of an employee’s rights, helping to preempt any challenges that may be brought.

The biggest impact of the decision is whether the current working patterns employed by those who have peripatetic workers are compliant with the requirements of the WTR in light of the ‘extra’ hours to the working day. The decision could affect whether workers are getting the requisite daily rest period of 11 hours between working days and whether the timing of breaks at six hour intervals needs to be changed. It will therefore be important for companies with such workers to review their practices in order to ensure compliance.

Employment advice law for employers

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