In a well-publicisied decision, the European Court of Justice ruled that travelling to the first and last appointments of a working day should be considered as work time. What impact could the decision have for UK heating and plumbing businesses? By Mark Stevens. 

In a decision that will cause concern for all employers of mobile workers, the European Court of Justice (ECJ) has concluded that the first and final trips of the working day to and from work could be considered ‘working time’. This could have an impact on the hours that count towards the maximum hours a worker can work, and potentially even how much an employer will be required to pay its workers.

The decision was made by the ECJ in a case involving Spanish workers for Tyco Integrated Security SL. The security company employed 75 workers to fit and repair equipment at the premises of their customers located throughout Spain. In 2011, Tyco restructured its business and re-assigned all its employees to the central office in Madrid. The local offices across Spain were closed down.

Each technician was responsible for a particular region of the country. Even though the workers were assigned to Tyco’s Madrid office, they did not have a ‘habitual place of work’. Tyco arranged its team of technicians so that each of the workers was assigned a company car that they used to travel from their homes to customers. Having completed all of their client visits, the technicians would then return home at the end of the day.

The company controlled the assignments that the technicians undertook by creating a task list and then sending an itinerary to the technicians via their mobile phones. Working time was defined to specifically exclude the time that each worker spent travelling from their home to their first customer’s premises and the time that they then spent returning home from the last customer. The distance between customer premises and a technician’s home could vary and be more than 100 kilometres.

Tyco’s technicians tried to challenge this classification, arguing it was in contradiction of the EU Working Time Directive, and that their initial and final trips of the day should be counted as working time. The Spanish courts referred the case to the ECJ for a decision.

The decision
Article 2 of the EU Working Time Directive defines ‘working time’ as any period during which the worker is working; at the employer’s disposal; carrying out their activity or duties in accordance with national laws and/or practice. The Directive was implemented in the UK by means of the Working Time Regulations 1998.

The ECJ was satisfied that the time spent by Tyco employees in travelling to and from the first and final tasks of the day fell into the definition of working time. The ECJ determined that travelling to and from customer’s premises was an inherent part of the job and, as such, the requirement for the technician to be working had been met.

In addition, the ECJ found that the workers were at Tyco’s disposal during the travelling time because Tyco could control the activities undertaken by the worker during the journey. Whilst the technician had some discretion as to the exact route that they could follow during the course of the working day, if a customer cancelled or there was a change to the itinerary, Tyco would contact the technician to re-route them or add another job onto their itinerary.

Finally, the ECJ said that the workers were travelling to customers in order to provide services for Tyco’s benefit. The ECJ noted that the fact that the journeys of the workers in question, at the beginning and at the end of the day, to or from the customers, were regarded by Tyco as working time before the abolition of the regional offices, was also persuasive evidence that Tyco had previously considered journeys to customers premises to amount to working time.

The only thing that had changed was the departure point of those journeys – rather than starting and finishing their work at the regional office, the technicians now started their work at the regional office rather than stating and finishing their days at home. The ECJ were satisfied that the requirement that the workers were carrying out work activity and duties had been met.

What it means
This case will have an impact on any employer of mobile workers, including plumbing and heating engineers and salesmen. Employees should now consider the pay implications that the judgment may have for any ‘mobile’ employee.

For those employees who are paid hourly, the decision is likely to mean that employers will need to review what payments are made during time spent travelling to and from the first and last jobs of the day.

For those employees who are paid monthly, employers will need to consider whether counting time spent travelling to and from the first job of the day towards the employee’s total hours will mean that their monthly income no longer meets the National Minimum Wage.

The Employment Tribunal is currently considering a case being pursued against MiHomecare, a home-care services company here in the UK. Essentially, a worker is claiming that MiHomecare is failing to meet its obligation to pay the National Minimum Wage by refusing to include staff travel time between home visits in pay calculations. An outcome is awaited.

This decision will have an impact on the worker’s right to a daily rest period and their maximum working hours under the Working Time Regulations here in the UK.

Firms may now want to minimise the amount of working time undertaken by a worker in these circumstances. This might mean that employers will need to consider sending mobile employees to locations near their homes and potentially consider providing for a provision in any new contract obliging employees to live within a certain area in order to reduce travel time.

It is important to remember that the Tyco decision does not relate to those workers that have a fixed working base. For them, travelling to and from their workplace will not become ‘working time’.

Mark Stevens is a solicitor at Veale Wasbrough Vizards.