The Court of Justice of the European Union (CJEU) has held that, for workers who do not have a fixed or habitual place of work, time spent travelling between their homes and the premises of their first and last customers of the day, constitutes working time for the purpose of the EU Working Time Directive (No. 2003/88) (Directive).

The CJEU determined that during such journeys the workers are at work, at their employer’s disposal and carrying out the duties or activities of their work. Therefore time spent travelling satisfied the definition of Working Time within the meaning of Article 2 of the Directive.

This case could have potentially far reaching implications for employers who employ workers who do not have a fixed or habitual place of work such as sales reps, care workers, tradesmen etc. Such employers will need to carefully consider the implications of this decision for their business in terms of calculating weekly working hours, daily rest breaks, payments for such travel time and minimum wage implications.


Facts

Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL and Tyco Integrated Fire and Security Corporation Services SA (C-266/14) involved two security system companies (“Tyco”) whose employees install and maintain security equipment in homes and business premises of Tyco’s customers in Spain. In 2011, Tyco closed their provincial offices and assigned all the employees to the central office in Madrid. They receive their daily assignments for the next day via an application on a mobile phone the day before.

Before the provincial offices were closed, Tyco calculated working time as starting when a technician arrived at the office to pick up a vehicle and task list, and finishing when they arrived back at the office to drop the vehicle off. After provincial offices were closed, Tyco did not treat the first journey of the day (from home to the first assignment) or the last journey of the day (from the last assignment to home) as working time. They calculated the working day as starting from the time the technician arrived at the first assignment and ending when they left their last assignment.

The employees brought a complaint to the Spanish Court that Tyco was breaching the Spanish working time rules by not including time spent on their first and last journey of the dat. The Spanish Court referred a question to the CJEU seeking clarification of the meaning of working time in this context.


Advocate General’s Opinion

In June 2015, the Advocate General gave his opinion that the time that peripatetic workers spend travelling from home to the first customer and from the last customer to their homes, constitutes working time within the meaning of the Directive. In his view, travelling is an integral part of working for such workers and is a necessary means of providing services to customers, meaning that it should be regarded as forming part of the “activities or duties” of those workers.


CJEU Decision

The CJEU agreed with the Advocate General that the three aspects of the definition of working time under the Directive had been satisfied.

The fact that the journeys of the workers at the beginning and end of the day were regarded as working time before the abolition of the regional offices, showed that these journeys were previously considered to be among the duties and activities of those workers. The nature of those journeys had not changed, only the departure point.

The Court further took the view that the workers were at the employer’s disposal for the duration of the journeys. During those journeys the workers act on the instructions of the employer who may change the order of the customers or cancel or add an appointment at any time. The workers were not able to use their time freely and pursue their own interests.

In addition, given that travelling is an integral part of being such a worker, the place of work cannot be reduced to the physical areas of work on the premises of the employer’s customers. The fact that the workers begin and finish the journey at their homes, stems directly from the decision of their employer to abolish regional offices and not from the desire of the workers themselves. Requiring them to bear the burden of their employer’s choice would be contrary to the objective of protecting the health and safety of the workers pursued by the Directive which includes the necessity of guaranteeing workers minimum rest period.


Implications For Employers

The Tyco case has significant implications for employers who have employees with no fixed or habitual workplace such as sales reps, care workers or tradesmen. It could result in employers having to pay such workers for time spent travelling to and from work.

Many employers will be in the same situation as Tyco, having closed regional offices to gain operational efficiencies. The CJEU clearly gave a lot of weight to this point when reaching its decision but it is unclear whether National Courts will interpret the decision narrowly and confine it to such scenarios or whether they will take a more expansive approach and treat the ruling as applicable to all mobile workers. Given the CJEU’s emphasis on the underlying health and safety focus of the Directive, our view would be that the latter is more likely.

Employers may also have to reduce their working hours as travelling time would count towards the 48 hour maximum working week (unless an opt out agreement has been signed). It will also have to be taken into account in deciding whether employees have had sufficient daily and weekly rest breaks.

Another possible area of conflict is with regard to National Minimum Wage Regulations which specify that time spent travelling between an employee’s place of residence and place of work and back does not count as working time. The ECJ pointed out that Tyco remained free to determine the remuneration for travelling time and that, save in the case of paid annual leave, the Directive does not apply to the remuneration of workers. However, it is likely that claims may be brought by workers seeking the recognition of travel time for NMW purposes.


Next Steps

In light of this case, we would advise employers with employees who have no fixed or habitual place of work, and who spend time travelling as part of their work to consider whether any amendments need to be made to contracts and/or handbooks regarding whether travelling time constitutes working time and whether / what workers will be paid for such time.

They should also consider implementing monitoring procedures to ensure that mobile workers are not working more than 48 hours per week (unless an appropriate opt out is in place) and should review scheduling systems and evaluate whether it would be feasible to schedule first and last appointments of the day in proximity to an employee’s home to minimise potential abuse and achieve maximum efficiency.