Travel time is working time – but not for most employees!

In a Spanish case before the ECJ, it has been established that time spent by workers, who do not have a fixed place of work, travelling between their homes and their first and last appointments or customers of the day constitutes “working time” for the purposes of the Working Time Directive. This does not however apply to “ordinary” employees who commute from their home to a fixed place of work each day. 

16th September 2015

In a Spanish case before the ECJ, it has been established that time spent by workers, who do not have a fixed place of work, travelling between their homes and their first and last appointments of the day constitutes “working time” for the purposes of the Working Time Directive.

The case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another concerned employees of a Spanish security system maintenance and installation company. The company’s 75 technicians were originally based at various provincial offices around Spain. The time spent travelling between the technicians’ homes and their designated office at the start and end of each day was not considered working time, and the technicians’ working day was counted as starting from when they arrived at the office to pick up their company vehicle in the morning and ended when they dropped it off.

In 2011, the company closed its provincial offices, and from that point the technicians would use a company vehicle to travel directly from their homes at the start of the day to their first assignment, and then return home at the end of the day. Their task list was determined by the employer, and was communicated to them each day via a mobile phone app. The company determined that the travel time from each technician’s home to their first assignment each day, and the travel time home after their last assignment, did not constitute “working time”.

This was challenged by the technicians and the Spanish courts ultimately referred the case to the ECJ for confirmation as to whether time spent travelling at the beginning and the end of each day by a peripatetic worker constituted “working time” under the Working Time Directive. The ECJ confirmed that the three aspects of the definition of working time were satisfied in respect of the travel time, namely:

  1. The time travelling to and from customers was part of the workers “activities or duties” as it was inherent in the performance of the role.  It was relevant that travelling to and from customers from the company’s offices, before they were closed, was treated as working time.
  2. The workers were at their employer’s disposal during the travel time and they were not able to use the time freely or to pursue their own interests.  Further, the employer was able to change or cancel appointments, with the technicians having to respond to such changes, during the travel time, and so they were considered to be carrying out the activity of the employer during this time.
  3. Finally, the Court considered that if employees do not have a fixed place of work and their duties require travelling to and from customers, the employees must be regarded as “working” on those journeys. The fact those journeys start and finish at the employees’ homes is irrelevant.

This decision provides clarity on how working time should be determined for mobile workers with no fixed place of work. The decision will affect specific issues, for example ensuring compliance with the maximum working time in a week, and minimum rest breaks. 

For the majority of employees, however, who either have a fixed place of work or work from home without regular travel, this case will not affect them. The case does not mean (as was perhaps suggested in some reports in the media!) that all employees are now entitled to be paid for their normal commute to and from a fixed place of work. 

In fact, the CJEU noted in its judgment that this case wouldn’t necessarily have a financial impact even for those mobile workers it does apply to, because the Working Time Directive doesn’t apply to remuneration for working time and the employer is ultimately free to determine the level of remuneration for time spent travelling. However, this isn’t necessarily the case, at least in the UK.  In including these comments in its decision, the CJEU has missed the fact that in the UK an employer must pay at least the National Minimum Wage for each hour of working time and whilst the test for determining working time is different between the NMW Act and the Working Time Regulations it is similar enough to require payment for the time spent by peripatetic workers travelling to and from their first and last jobs of the day. Some employers with a mobile workforce may already be treating travel time as working time, and so are unlikely to have any WTR or NMW issues as a result of this decision. Others may however have either WTR issues, or NMW issues, or both, to consider, depending on the levels of pay and working patterns of their staff.