When is commuting time Working time?


If you employ staff who are entirely or largely field-based, and travel from home to their various assignments each day, without attending a workplace first, or if you are such a worker, then this article contains important information for you.

Bishop & Sewell take a look at the impact of a recent European Court decision in:-

Federacion de Servicios Privados  del sindicato Comisiones obreras  -and –  Tyco Integrated

Security SL  & anor.

This case held that certain commuting constitutes “working time” with the effect that employers may be asking their employees to work too many hours once their commute is taken into account.

This article also looks at what employers might do to ensure they comply with the Working Time Regulations and do not leave themselves exposed to unexpected claims for payment for such travelling time.

Examples of workers who may be affected

  • Technical/maintenance/engineering workers (e.g. gas fitters, plumbers) who travel from their home to customers’ premises or homes;
  • Care workers who travel from their home to visit service users at home;
  • GPs/occupational therapists who make home visits to patients/service users;
  • Sales staff who visit clients’ or potential clients homes/premises during the day;
  • Agency staff without a habitual place of work;
  • Other employees/workers who do not have a fixed office that they work from, but who travel directly to appointments during the day as required by their employers (Peripatetic workers)

Background

The case involved technicians working for a Spanish security company, whose job involved travelling to clients’ premises to install and maintain security equipment.  Previously, they had travelled from their homes to a regional office each day before setting out to their first client appointment. However, the company closed the regional offices, and the technicians were instead sent a list of appointments each evening for the following day. They would then travel to their appointments directly from home. In some cases, they had to travel for up to 3 hours to their first appointment.

The issue

The Working Time Directive, which applies to all EU countries including the UK, states that workers may not be made to work for more than 48 hours per week (averaged out over 17 weeks). The issue was whether the time spent by the workers travelling from home to their first appointment of the day, and travelling back home after their last appointment, counted as “working time” under the Directive.

The Court noted that, prior to the closing of the regional offices, the company had treated the travelling time between the office and the first appointment as “working time”.

The decision

The court decided that the time spent travelling between their homes and their first/last appointments of the day does count as “working time” for workers in this type of situation. The consequence is that some workers may actually be being made to work for longer than is permitted, meaning that their rights are being breached.

The key point is that the decision affects those workers who:

  1. Do not have a fixed or habitual place of work, and
  2. Travel from home each day directly to their appointments

Ramifications for employers

  • The Court acknowledged that this decision may lead to an increase in costs for employers, but held that this cannot be a reason for not recognising the travelling time as working time. It noted that the employer remained free to determine what to pay the staff for travelling time. Just because this time is classified as working time it does not automatically follow that it must be paid at the contractual rate or that it would attract the National Minimum Wage.
  • Staff contracts will need to be reviewed where they are paid on an hourly rate basis, or on a salaried basis but with a right to paid overtime, to ensure that employers will not be hit with an unexpected bill for additional pay. Clauses dealing with pay and overtime, working hours / start and end times, place of work, and outside employment should all be reviewed. Loose but previously acceptable drafting in these areas could create a contractual right to payment for any commuting time now classified as working time when otherwise no statutory right to payment exists.
  • The risk of significant pressure being brought to bear on an employer to pay for travelling time is generally going to be greater in unionised environments.
  • While the travelling time must, in appropriate cases, be classified as “working time”, employers may be concerned about abuse by employees, who may conduct personal business at the beginning and end of the day. However, the Court held that it is for employers to put safeguards in place to prevent abuse.
  • Similarly, employers will need to find ways to make sure that they are aware of how long affected employees are traveling for (on top of other working hours), and whether any of this can be disregarded, bearing in mind any personal business (e.g. school runs) that may be undertaken on the journey. We would suggest an initial audit followed by ongoing monitoring and spot checks for abuse.
  • Employers should urgently assess whether they need to ask more of their staff to sign opt out agreements, whereby they may voluntarily opt out of the 48 hour limit on the hours they can be obliged to work, having regard to any outside employment. They will also need to consider whether any affected employees are getting the “rest time” specified in the Working time Regulations e.g. 11 consecutive hours daily rest between shifts.
  • Employers should ensure that their working time records for staff are up to date and have been retained for the correct period, as non-compliance can be a criminal offence carrying a hefty fine.

Ramifications for employees

  • Employees whose job involves travelling directly from home to their appointments each day should consider whether their commute might tip them over 48 hours work per week, assuming they have not opted out of the Working Time Regulations.
  • The classification of travelling time as “working time” does not necessarily mean that an employee must be paid for that time. This case concerned the Working Time Directive, which is concerned with the maximum number of hours that workers can be required to work. It does not concern how much employees should be paid, which is governed by the National Minimum Wage Regulations. Those Regulations indicate that employees whose pay is based on the time spent working are not entitled to be paid for their commute between home and work. However, if an employment contract is not sufficiently clear on what constitutes “working”, a right to be paid for this time may arise.
  • The Working Time Regulations also set limits for the maximum number of hours that should be worked in a day and the minimum period of “rest time” that workers should have between working shifts. This decision may also impact employees’ rights where their commute would cause their working day overall to exceed these limits.

Anyone requiring a review of their employment contracts and supporting policies, or in need of advice on any of the above issues, should contact our Employment team on 020 7631 4141 or by emailing employment@bishopandsewell.co.uk who will be very happy to discuss your needs and the costs which might be involved.

The information set out herein is for general information/ guidance purposes only. No liability is accepted for any reliance placed upon it since such generic guidance is no substitute for taking specific tailored legal advice.

 


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