The Family Business: My employee says I now have to pay him to travel to work. Is this really the case?

Published: 10/11/2015

You may have seen recent headlines in the national press such as “EU wants firms to pay staff from moment they leave their house: British companies expected to be hit by changes to rules” (Daily Mail, 11 September 2015). This has understandably caused considerable concern for clients – but what is the commercial reality behind this news?

Back in June, the Advocate General gave an opinion in the case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another that travelling workers with no fixed or habitual workplace should be able to count the time spent travelling from home to the first customer, and the journey from the last customer to the worker’s home, as ‘working time’ under the EU Working Time Directive.

ECJ decision

The European Court of Justice has now reached the same conclusion - accepting that, for the purposes of the Working Time Directive, travelling to and from a non-fixed place of work (such as a customer’s premises) is ‘working time’. In Tyco, the journeys in question were a necessary means of providing services to an employer’s customers, so the mobile technicians were at their employer’s disposal during the travelling time. Since travelling was an integral part of their
work, their ‘place of work’ could not be restricted to just the various customers’ premises.

Consequences

The Working Time Regulations 1998 (WTR) do not expressly deal with travelling time, but the Government’s non-statutory guidance (available on GOV.uk) envisages that working time includes time spent travelling, if it is part of an individual’s job. This latest ECJ decision confirms that travelling time to and from a place of work for workers with no fixed workplace counts as ‘working time’. This will need to be taken into account by employers, for example to ensure
compliance with the right to rest breaks under the WTR.

However, the ECJ was careful to distinguish the categorisation of travelling time as ‘work’ for the purposes of the Working Time Directive from the right to be paid, which is a matter for national law.

What counts as ‘time work’ for the purposes of the National Minimum Wage Regulations 2015 (NMW Regulations) differs to the definition ‘working time’ under the WTR, although there is a considerable degree of overlap between the two pieces of legislation. It has already been established that travel between assignments during the working day counts as ‘time work’ for NMW purposes.

However, travelling from home to a place of work or a place where an assignment is carried out is expressly excluded as ‘time work’ for most workers under the NMW Regulations. In light of this it would seem difficult for an affected individual to rely on this latest ECJ decision to pursue a claim for underpayment of the NMW, despite press reports to the contrary.

Whether an affected worker should be paid for their travelling time at either end of their working day will ultimately be a matter for the individual’s contract of employment. If the contract is silent it could now be argued that the employee should be paid.

Our experienced employment law team are on hand to review your policies or contracts in light of this important decision.

The content of this article is for general information only. For further information on this topic, please contact a member of Birketts' Employment Law Team. Law covered as at November 2015.

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