ECJ rules travelling time is working time

Hayley Kirton, 11 September 2015

Mixed reactions as UK employers grapple with the implications.

Time spent travelling to and from home by employees without a fixed working base should count towards time worked, the European Court of Justice (ECJ) has ruled.

The decision relates to a case – Federacion de Servicios Privados v Tyco Integrated Security – concerning staff at a Spanish security company. But because the ruling covers the EU’s Working Time Directive, it also impacts UK employers.

The decision will affect how maximum weekly working hours and rest break entitlements are calculated. It could potentially mean businesses will have to pay employees for their journey time.

The ruling, which was delivered yesterday, only affects peripatetic workers – those without an habitual workplace. The decision does not alter how commuting is treated for those with a fixed workplace.

The judgment will delight many working in professions such as care, where mobile working is common, as well as full-time employed plumbers and electricians.

The TUC also welcomed the verdict. Frances O’Grady, general secretary, said: “Many bosses are already fair-minded about travel time for journeys to customers. But this sensible ruling will prevent unscrupulous employers opening up a loophole to force some staff to work upwards of 60 hours a week.”

Dave Prentis, general secretary of UNISON, the UK’s largest healthcare trade union, said: “Tens of thousands of home care workers are not even getting the minimum wage because their employers fail to pay them for the time they spend travelling between the homes of all the people they care for. Now, thanks to this case, they should also be paid when they are travelling to their first visit, and again back home from their last.”

But the decision is not without its critics. The UK government has argued that including travel time in working time would lead to higher costs for businesses, and has said that the business department will now have to carefully consider the judgment’s implications.

Meanwhile, the Institute of Directors (IoD) has slammed the ECJ, calling the court a “red-tape machine”, which was “tormenting firms across Europe.” Allie Renison, head of EU and trade policy at the IoD, said: “This ruling will surprise and concern many UK businesses, and indeed public sectors employers, who had been following the law to the letter.  The notion that the period mobile workers spend travelling between home and their first client in the morning must count as working time goes above and beyond the protections intended by the law.”

Commenting on the legal issues stemming from the ruling, Elizabeth Slattery, head of employment at Hogan Lovells LLP, said: “Businesses who don’t already pay peripatetic employees for their travelling time at the start and end of the day may now face pressure to do so, and face challenges in monitoring this. If mobile employees already opt out of maximum weekly working time, this decision shouldn’t mean that existing working hours have to be reduced. However, employers will need to check that peripatetic employees are able to take at least 11 hours’ rest between getting home at night and setting off again the following morning.”

Hayley Kirton is the junior staff writer on People Management.