Travelling Time As Working Time

The European Court of Justice has recently held in the case of Federacion de ServicosPrivados del SindicatorComisionesObreras v Tyco Integrated Security SL and anor that travelling time for workers who have no fixed place of work (peripatetic workers) should be working time under the Working Time Regulations.

The Working Time Regulations are designed as a health and safety requirement and provide those workers who have not opted out with the right not to work more than 48 hours a week. Tyco employed 75 workers who installed security equipment in homes and businesses over Spain. Tyco’s policy was not to count time spent travelling to and from the first and last appointment of each day as working time. Its workers argued that this time ought to have been considered as working time for the purposes of the Working Time Regulations and that Tyco was therefore in breach. The ECJ agreed.

The decision could affect thousands of workers in the UK, such as call-out engineers and carers. However, we should bear in mind that this decision is in relation working time for the purposes of the Working Time Regulations as opposed to the national minimum wage, so although it will affect things like rest breaks, it is unlikely to affect pay. Whilst the ECJ was clear that for the Working Time Regulations, travelling times for peripatetic workers would be working time, it responded to the UK government’s objections about the increased costs that could result by saying that payment was still a matter for Tyco. The issue will largely be determined by how individual’s employment contracts are drafted. However, where there is a danger of employees being paid less than the minimum wage, this judgment is unlikely to change much as the National Minimum Wage Regulations rule out travel between an assignment and home as being working time (although this is contentious).

Even for employees with a fixed workplace, the distinction between work and rest time is becoming increasingly blurred. For example, many of us commuting to and from work will often check emails on a portable device and employees are increasingly expected to be available outside of working hours. Here are a few interesting ways that some employers have tried to separate work and play:

  • more controversially, unlimited holiday or parental or maternity leave like Virgin or Netflix.