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Time to pay for travel to work?
Much has been made of the recent case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another in which the European Court of Justice has recently held that time spent by peripatetic workers between their home and the premises of their first and last customers of the day was working time under the Working Time Directive. So how will this affect UK employers?
The case concerned a Spanish security system installation and maintenance company where workers travelled directly from home to the first customer of the day, and directly home from the last customer of the day. Their employer argued that these journeys were not ‘working time’ under the Working Time Directive. The ECJ disagreed, finding that such journeys amount to ‘working time’. In arriving at this decision, the ECJ specifically rejected an argument from the UK government that this would increase costs for employers, stating in response that employers remain free (subject to national law) to determine pay for such travel time.
Applying this to UK employers, it is important to remember that the case dealt only with workers with no fixed or habitual place of work. The vast majority of UK workers who are expected to travel to and from a fixed workplace in their own time will therefore be unaffected by this ruling. It will, however, affect workers such as tradesmen or care workers who assist clients in their own homes.
For those who are covered, the ruling deals only with the position under the Working Time Regulations. It means that travel time directly to/from the first/last customer of the day will now count as working time for the purposes of establishing compliance with rules such the 48 hour working week, daily rest and rest breaks. The practical point for employers to consider is whether rotas may need to be reworked or working days shortened to accommodate this.
The most common question we are being asked is whether workers now have to be paid for their travel time to/from the first/last customer of the day. The answer is – probably not. There is nothing in this judgment that undermines general contractual principles for payment – so a worker paid according to an established contractual pattern (e.g. based on a fixed daily or weekly rate or a salaried worker) will not have his contractual entitlement increased.
This case should not affect the national minimum wage position. The current position under the National Minimum Wage Regulations 2015 is that, for both salaried hours work and time work, travel between the worker’s home and a place of work or “a place where an assignment is carried out” does not attract the minimum wage – a position which is not directly challenged by this case. Of course workers who have heard about this case may now assume they will be paid more, so you may want to think about how you should respond to them.
If you need any more specific advice or wish to talk through the implications for your workforce, do please get in touch.