Thousands of employers are set to find themselves on the wrong side of the law after the European Court ruled that time spent travelling to work effectively counts as work for workers without a fixed office.
The development means that many employees will now potentially be able to take legal action against their employers if they fail to ensure that staff get their statutory entitlement to 11 hours rest in any 24 hours period (when factoring in the fact that travel time may be regarded as ‘working time’).
Whilst the regular daily commute is not counted as work for most employees, those who routinely travel between appointments as part of their job – hours that were not previously considered as part of their working day – will now be required to have this time treated as working time. The change is good news for, amongst others, employees such as gas fitters, care workers and sales reps.
The European Court made the decision to bring conditions for these types of workers in line with the European Union’s existing Working Time Directive. The matter is primarily one of health and safety. For example, for care workers travelling between isolated homes who spend more time on the road than working in the capacity for which they were formally employed, this can have serious impacts on their health and wellbeing. It can also lead to a long-hours culture as employees take on more appointments simply to work the same number of hours that fixed-office employees take for granted.
The implications of the ruling for UK employees is potentially profound. The Working Time Directive ensures that no one should have to work more than 48 hours per week (with opt-outs for specific professions). However, many employees who travel as a part of their job work far in excess of this, solely because a significant proportion of that time is spent getting to and from appointments. Aside from increased protection for these workers, the ruling is likely to prompt changes in the ways that firms organise appointments. Previously, these might have been made with little concern for the impact on employees.
Now, it will make greater sense to ensure that appointments at the beginning and end of the day take place as close as possible to the employee’s home – leading to a more considered and intelligent approach to scheduling.
As the ruling states: ‘The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves. Requiring them to bear the burden of their employer’s choice would be contrary to the objective of protecting the safety and health of workers pursued by the directive, which includes the necessity of guaranteeing workers a minimum rest period.’
Contrary to speculation, the ruling has no wider significance for those on the minimum wage, unless they work in positions that do not have a fixed office.
If you are concerned about pay issues at work, you will benefit from the advice of an informed and experienced professional, who can give you the support you need.
Michael Simpson, Head of Employment Law at Co-op Legal Services said, “We live in a mobile society which has an increasing demand on employees to work flexibly from home, and for employees, sales staff and people working on-call to travel to customer locations across the UK.
In the Tyco case, the European Court of Justice held that these “road warriors” deserve the protection of the Working Time Directive so that employees travelling time between home and customer, should be regarded as time working."
How does European Court Ruling affect UK Employees?
UK Courts and Employment Tribunals are obliged to interpret the Working Time Regulations 1998 in a way which is consistent with the Directive. It is therefore very likely that Regulation 2(1) of the Working Time Regulations will be interpreted so that the travel time of workers who travel, such as salesmen who work from home, will be regarded as working time.”
Are UK Employees Now Entitled to Travel Time?
Although similar considerations about travel time arise in relation to the National Minimum Wage Regulations, decisions on the meaning of ‘working time’ under the Working Time Regulations are not able to determine the equivalent issues in relation to the minimum wage.
This is because of basic schematic differences between the two sets of legislation. The National Minimum Wage Regulations do not have a defined concept of ‘working time’ at all, and there is no parent Directive underpinning the National Minimum Wage Regulations. As a result, I expect there will be satellite litigation around the issue of the minimum wage and travel time.”