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Mobile Workers - Daily Travel To and From Work is 'Working Time'

The EU Working Time Directive, which is implemented into UK law by the Working Time Regulations 1998, defines working time as 'any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice'. A rest period is defined as 'any period which is not working time'.

In FederaciÓn de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and Another, the Court of Justice of the European Union (CJEU) has handed down its decision, following a referral from the Spanish National High Court, that time spent travelling to and from a customer's premises at the beginning and end of the day by a worker who is not assigned to a fixed place of work constitutes working time as defined by the Directive, not a rest period as was claimed by the employer.

Tyco Integrated Security SL installs and maintains security systems in the majority of Spanish provinces. In 2011, the company closed its regional offices, so instead of travelling to their local office each day in order to pick up the vehicle they were to use and the list of customers and tasks to be performed, its technicians were given the use of a company vehicle so that they could travel directly to and from the premises of the first and last customer each day. The CJEU heard that such journeys varied a great deal in length, being sometimes more than 100 kilometres, and in duration. Workers were also provided with mobile phones for ease of communication with the central office in Madrid. An application installed on each phone provided them with a task list for the following day, identifying which customers to visit and the times of the appointments. A further application enabled them to input details of the work performed.

Prior to the closure of the regional offices, daily working time had been calculated from the time at which each technician arrived to collect their vehicle and task list to the time they returned in the evening. Following the reorganisation, Tyco calculated the workers' daily hours from the time they arrived at the premises of the first customer of the day to the time they left the premises of the last customer. In its view, the job of its workers was to provide technical services, installing and maintaining security systems for its customers, so time spent travelling between home and the customers' premises was not time spent carrying out their activity or duties but a rest period.

In reaching its decision, the CJEU found that, for the purposes of the Directive, the concept of working time is directly opposed to that of a rest period. There is no provision for any intermediate category between the two. In its view, the workers must be regarded as carrying out their working activity or duties during the time spent travelling between home and the customers' premises. Such journeys were a necessary means of supplying the technical services provided by the company and their nature had not changed as a result of the closure of the regional offices, merely their departure point. Such a change did not affect the legal obligation of the workers to carry out their employer's instructions and they were not free to pursue their own interests during the necessary travelling time. They were, consequently, at their employer's disposal. Furthermore, travelling is an integral part of being a worker with no fixed place of work, and the place of work cannot be restricted to the premises of their employer's customers.

Concerns put forward that workers would conduct their personal business during the travelling time in question were dismissed. In such circumstances, it is for the employer to put in place the necessary monitoring procedures to avoid any potential abuse.

In the light of this decision, the Advisory, Conciliation and Arbitration Service (Acas) has updated its guidance on peripatetic workers.

The guidance also stresses that a health and safety risk assessment should be undertaken for peripatetic workers, taking into account the fact that they will be working away from the normal work base, or will have no base, and also the type of work that will be carried out.

The guidance also contains information on employment status and the National Minimum Wage.

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Those who employ mobile workers should check whether a change in the way working time is calculated is necessary. Any increase in hours could mean that workers should be asked to agree to opt out of the 48-hour working week. We can advise you to ensure your procedures comply with the latest developments in the law.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.