Stephen Moore and Stephen Homer, partners at solicitor Ashfords, explain the impact the EU court ruling that the commute be considered ‘working time’ for mobile employees could have on the construction industry.
The Court of Justice of the European Union (CJEU) has ruled in the Tyco case that, for employees with no fixed or habitual place of work, time spent travelling between their home and their first and last locations of work is to be regarded as “working time”. This does not impact on pay, which is a separate issue governed by the employment contract and separate legislation. However, the judgment does affect, for example, average weekly working time and minimum periods of paid holiday and may well impact on those in the construction industry.
The case was brought by technician employees of the Spanish company Tyco, who installed and maintained domestic and commercial security equipment. Tyco had historically regarded the working day of these employees as starting when they arrived at the offices to pick up the vehicles and customer list they were to use that day, and ending when they returned the vehicle to the offices in the evening.
However, following the closure of the regional offices in 2011 the employees were each given a company vehicle to travel from their own homes to the places where they were required to install or carry out maintenance on the equipment. Tyco calculated daily working hours as beginning when the employee arrived at the premises of the first customer of the day and ending when those employees left the premises of the last customer of the day. Tyco argued that the travelling time from the employees’ homes to customers’ premises at the beginning and end of the day was a “rest period”.
Journeys to places of work have been ruled as “working time”
The CJEU rejected these arguments. It said that during those journeys they were acting on the instructions of the employer, they were not able to use their time freely and pursue their own interests. Given that travelling is such an integral part of being a worker without a fixed or habitual place of work the court said: “The place of work of such workers cannot be reduced to the physical areas of their work on the premises of their employer’s customers.”
What does the case mean for the construction industry?
Although the case was referred to the CJEU by the Spanish courts, this decision also automatically applies to the UK by virtue of the nationally-adopted Working Time Regulations. However, before employers in the construction industry worry, the parameters of this judgement should be properly defined:
- This decision only relates to peripatetic employees.
- This does not mean that employers must now pay travelling employees more on top of their existing wage to cover this “working time” incurred in commuting between their homes and customers’ homes (or wherever their relevant place of work may be).
- This judgment does not apply to employees who have opted out of a maximum 48-hour working week.
The decision will affect those travelling employees who have not opted out, as the inclusion of this additional travelling time may mean they are now exceeding the 48-hour limit, when previously they were not.
It may also mean that employees are now not getting their 11-hour “rest period” between working days to which they are entitled under the Working Time Regulations as the rest period will be calculated between the end of the journey home and the beginning of the journey to work the next day.
The decision is likely to have significant implications for employers that employ a large number of peripatetic workers, for example those in the construction industry, perhaps causing some to re-assess their practices. Such employers may now be minded to more closely monitor when travelling employees start and finish work, while other employers may wish to now encourage their employees to opt out of the maximum working week altogether.
Finally, we note that although this decision by the CJEU does not directly cover the remuneration of workers, it may well lead to increased calls for employers, including those in the construction industry, to pay workers for this additional “travelling time”.
You can read the full case here.
