Travelling time

You may remember that I explained back in June that there was an issue over peripatetic workers and travelling time. In particular, in the European case of Federacion De Servicios Privados -v- Tyco Integrated Security which concerned Spanish workers we now have a confirmed ruling from the European Court of Justice on the issue.

The decision does not alter the position for those with a fixed workplace. For the majority of us who work from our employer’s premises we don’t, of course, get paid for travelling to work, nor does our time commuting count as working time when calculating things like maximum weekly working hours and rest break entitlements.

The decision relates to peripatetic workers who don’t have a fixed workplace – commonly their contract of employment will state that they work from their home and travel to customers.  In the UK lots of attention has been given to care workers who are travelling to help people within their homes, but it will also apply to service engineers and sales people who travel to meet their customers but are based from home.

In those cases the time the worker spends travelling to their first appointment of the day is not treated as normal commuting time like for the rest of us – it is treated as working time. Accordingly it would count towards the 48 hour working week although, of course, lots of employers have an opt-out in their contract of employment or another signed agreement with the employee under which they agree that that 48 hour working limit will not apply to them.

Even if there is an opt-out, it will cause the employer an issue when it comes to rest breaks. All workers have the right to a 20 minute break after 6 hours of work and obviously if somebody has spent an hour and a half travelling to their first appointment in the morning there is less of the working day left before they are required to take a break. Also, when it comes to calculating daily rest between shifts, if somebody is travelling back over a lengthy distance from a customer in the evening, say, and having to leave home quite early in the morning the next morning in order to reach their next appointment – the number of hours of rest that that person is getting may not conform to the requirements under the Working Time Regulations for a rest break of 11 uninterrupted hours in every 24 hour period. This is also likely to be the case if the sales person, for example, has to go home and do paperwork and send emails after doing their travelling at night. Whilst most workers are probably unaware of their rights in this regard, it is usually when there is some kind of falling out that this issue will come to the fore with the employee arguing that the employer has been breaching their rights.

The third implication of the case relates to pay. The definition of working time for the purposes of the Working Time Regulations does not correlate with the calculation of the National Minimum Wage but it can only be a matter of time before the same logic gets applied here. There is a big case relating to care workers pending an outcome, if they were not being paid for their travel time then when you average their pay rate out over the average number of hours that they were working including their travel time, their pay rate would fall below their legal entitlement under the minimum wage.  Logic suggests that this has to be a problem. If the outcome of the case is as predicted then for employers who may pay well above the National Minimum Wage, for example to service engineers, they would have to be careful to make sure that if an employee was working, say, an average of 60 hours a week once travel time was included, those workers were being paid on average at least the minimum wage throughout all of those 60 hours, when you divide their pay by 60.

We are already seeing lots of employers face pressure from staff to make changes as a result of this case which has received a lot of media attention. Whilst the employer may, for example, decide to require staff to work from a particular location by changing their contracts, as in one example that we have heard about, employers need to think very carefully about how they handle this issue, not least because of the message that it will send to staff and the impact on industrial relations.

The decision has been widely criticised by UK business organisations who are alive to the potential costs to business and the impact on them when they may not be able to pass those costs on to their customers. Even though it is a European decision it is highly likely to be followed by the UK courts so you should bear this in mind and act accordingly.