On 10 September 2015 the Court of Justice for the European Union ruled on the case of Federation de Services v. Tyco and held that workers who have no fixed place of work and who travel between their homes and their first and last customers of the day were to be considered as working whilst travelling to and from home.
Working Time Directive
The Court reminded us that under the Working Time Directive there are only two types of time, working time and rest time. Working time is any period in which a worker is working, at the employer’s disposal and carrying out activities or duties. Rest time is any time which is not working time.
Many of us consider that this is too simplistic a definition, and that there are clearly circumstances in which time is neither working time nor resting time, for example the time that most fixed place workers spend each day travelling to or from their office, factory or usual place of work.
The Tyco decision will not affect the vast majority of workers who travel to and from a fixed place of work each day; that is still not working time on the basis that a worker is free to choose where they live and the appropriate distance they decide to travel between their place of work and their home.
The workers who are affected by this decision are mobile workers who do not have a fixed place of work. They are described as peripatetic workers, i.e people who work at different places on different days. This could be a mobile sales force, care workers or those undertaking mobile repairs or similar services.
In the Tyco case the company closed its regional office which was where previously all the workers reported to in the morning and received instructions as to which customers they were to visit in what order. After the closing of the regional office the instructions of where they were to go were sent by phone to them from Head Office and they travelled to the first appointment direct from their home and from their last appointment back to their home. The Court considered that in those circumstances they were working when travelling because they were at their employer’s disposal carrying out activities that their employer had specifically asked them to do. They decided that under no possible description could this be described as rest time, and therefore if it wasn’t rest time it must be working time.
This decision was essentially a health and safety decision as the Court were trying to ensure that workers who were travelling had adequate rest breaks. However the case has been reported as one of financial significance because if the travel time was working time then the workers would be entitled to be paid for that time. An added complication will occur if by adding in the travel hours to and from home, this could place the employers in breach of the minimum wage regulations. For example, if the worker was paid the minimum wage and now had two hours added to their working day, unless they received pay for these extra two hours, their employer would be found to be paying them less than the minimum wage because their working day had just increased by two hours.
For reasons best known to the Court, they decided that payment for this working travel time was not automatic despite the fact that this was now working time. They considered that workers could contract out of the right to be paid for this specific type of working time. The only thing they could not contract out of is being paid at least the minimum wage for all their working time. However, if a travelling sales force earned considerably more than the minimum wage regulations, the fact they worked two hours more per day may not take them below the minimum wage regulations. There could be a contractual agreement between the employer and the worker as to whether payment was contractually due to the worker in respect of the working travel time.
There are already Tribunal cases currently waiting to be heard which have been brought by care workers claiming that travel time between their appointments should be paid and it is easy to see an extension of this claim to include the first and the last visit if the next trip by the worker is back to their home.
Next step for employers
A lesson to be learnt is that reports of European cases are often misleading and that the cases rarely provide a simple answer. This case has raised more questions than it has answered. Employers should look carefully at their contracts of employments and address specifically the issue as to travelling to and from work, for any of their workforce who do not have fixed places of work. There is nothing to stop you agreeing that whilst this time is working time, it is not payable or not payable at any rate in excess of the minimum wage. It is much easier to negotiate terms in respect of travel time for non-fixed place workers, than it is to wait until the first Employment Tribunal claim arrives through the post!
We would be happy to help you with this review of your employment contracts, and if you need any assistance in this respect you should feel free to speak to Richard Keen on 01753 876 800 or email Richard.firstname.lastname@example.org.
ENDS SEPTEMBER 2015