Workers who travel to client sites can claim travel time

The European Court of Justice has held that employees who do not have a permanent work base but travel to clients from home each day should include the travel time to their first client and travelling home from their last client as “working time”.

The Working Time Directive provides that "working time" is any period during which the worker is:

• working;
• at the employer’s disposal; and
• carrying out their activity or duties in accordance with national laws and/or practice.

In this case, the employer did not class the first journey of the day to a client nor the last journey home as working time. However, the European Court of Justice held that the workers in this case satisfied each of these tests during their first and last journeys. Accordingly, the employees were entitled to class this time as working time.

Employers who do not have a permanent work base are advised to consider the potential impact of this decision. Similarly, employers with mobile workers should consider the impact in the event of a change in the employee’s work base.

The decision only affects what counts as working time under the Working Time Directive, such as rest breaks and in calculating annual leave. For example, employers need to ensure it does not mean that workers exceed the 48-hour working week, unless the worker has expressly consented to working in excess of 48 hours a week. It does not necessarily affect pay, but employers are advised to note the following:

• The National Minimum Wage Regulations do not require an employer to pay for travelling time between a client and the worker’s home, unless they do “unmeasured work”, which means they have no fixed hours or pay and are not paid according to their hours of work or output. In short, this means that mobile workers are unlikely to be entitled to the National Minimum Wage during travel time between a client and home; and
• A mobile worker will only be able to claim pay during travel between home and a client if their contract of employment can be interpreted in this way – for example, if it could be classed as overtime in accordance with the terms of the contract of employment. Employers are therefore advised to review their contracts of employment for mobile workers. If this decision has a potential impact on pay, then employers may wish to revise their contracts of employment for new workers and consider whether to negotiate potential claims with existing workers.

Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (c-266/14)