The European Working Time Directive 2003 (WTD) and the national legislation comprised in the Working Time Regulations (NI) 1998 (WTR) have been under regular scrutiny in the courts over the last number of years. Few employers will have missed the publicity surrounding the debate over what should and should not be included in calculations of holiday pay. Decisions relating to the Directive and Regulations are of particular significance since they potentially impact an employer’s wage bill. 

The European Court of Justice (ECJ) has ruled on whether travel time is ‘working time’ under the WTD in the case of workers who do not have a fixed or habitual work place. The definition of working time is in the national legislation but the WTR is based on the WTD and so the case has a bearing on how the definition will be interpreted in our own tribunals. It will impact and employers with mobile workers, not only in terms of payment but many may have to review working time and patterns.


The Case

Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security.

The question referred to the ECJ by the Spanish court was essentially whether travel time between a worker’s home, and the first and last appointments of the day, constitutes working time under the WTD. The ECJ found that it did. Tyco is a security installation company whose technicians were required to travel across Spain to attend customer premises. Tyco argued that the first and last appointments should not count as working time.

Article 2(1) of WTD defines working time as 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. This is mirrored in the WTR. The ECJ found that the travel time should count as working time as the workers were at the employer’s disposal, carrying out duties on their behalf in attending customers and were not free to carry out their own activities. The ECJ took into account that the Tyco controlled the time and order of the appointments. The court considered that the objective of the legislation was to improve working and living conditions and not to consider such journeys as part of the working day jeopardised the health and safety of the workers. 


Dealing with the Decision in Practice

There are some cases in the tribunal pipeline that are dealing with the question of travel time so it will not be long before we have a decision on the issue in Northern Ireland. Employers would be wise to carry out an assessment of any mobile workers, whether they are paid for their time, and whether travel time takes them outside the 48 hour working time limit. 

The facts on which the case has been decided may allow for some wriggle room in giving employees the freedom to structure their own appointments so that they cannot be said to be entirely at the employer’s disposal or to set a pattern so that it may be argued that they are not ‘at work’ when they are travelling. The arrangements will have to be carefully considered so as to be distinguished from the circumstances of the Tyco case.

The judgment points out that the WTD does not provide for what payment should be made and that it is up to employers to make their own arrangements in this regard. However, employers will be alive to the issues this will raise in relation to the National Minimum Wage legislation. 

The NMW Act and Regulations do not have a definition of ‘working time’ so any decision on the WTR does not automatically impact how a decision under the NMW regulations would be reached. It should be remembered that there is no right to be paid the minimum wage for each hour worked, only to be paid minimum wage (or above) on average for time worked over a pay reference period. This may give employers some room for manoeuvre.

Employers may wish to put in place some monitoring procedures to avoid any abuse in time claimed or stipulate routes to minimise time spent. They may also wish to consider alternatives to travel such as teleconferencing or other communications. Any significant changes to working time, duties or patterns should of course be consulted and agreed upon with the affected employees. This may include the need to get employees to opt out of the 48 hour working time limit contained in the WTR.

Further guidance on mobile workers and the WTR can be found at: 
https://www.gov.uk/government/publications/working-time-regulations-for-mobile-workers