UK: European Court of Justice ruling on working time creates headache for employers of peripatetic workers

The European Court of Justice has ruled that, for peripatetic employees with no fixed or habitual workplace, time spent travelling from home to the first customer and from the last customer of the day back home does count as ‘working time’. This is because during such journeys the workers are at work, at their employer’s disposal and carrying out their duties or activities. (Federacion de Servicios Privados v Tyco Integrated Security)

The ruling is relevant to mobile workers such as sales representatives, care workers, maintenance technicians and engineers, who visit a number of customer locations in a workday. Employers may face arguments as to whether it also applies where workers regularly move from site to site but spend at least a full day and potentially longer periods at one site; further case law will be needed to clarify whether such workers are viewed as having a fixed or habitual place of work for the duration of each project.

This approach conflicts with the interpretation given to the UK Working Time Regulations previously, but UK tribunals will now be obliged to interpret them in a way which is consistent with this ruling.

Note that there is no obligation under the National Minimum Wage Regulations to pay the minimum wage for time spent travelling from and to home, and there is no obligation to interpret these consistently with the Tyco ruling. However, employers may face pressure to pay wages for this time, even if there is no current contractual requirement to do so.

Impact for employers

UK employers may need to change their approach with regard to working time rights such as rest breaks, maximum working week and so on, and should now review this carefully. This could also be an important factor to take into account for businesses considering becoming less office-based and more mobile.

Employers who are concerned about employees performing personal tasks on the way from or to home may wish to put in place monitoring and disciplinary procedures to avoid abuse and perhaps make clear that workers must take the most direct route possible in their journeys, including between home and their first and last customers of the day.

Other jurisdictions

The ruling is relevant to other European jurisdictions.  In both Spain and France, this travel time at the start and end of each working day is currently not paid as or considered to be working time, so this is likely to result in increased costs for employers and could raise an issue in relation to working time limits.  Where employers seek to introduce changes in response to this ruling, particular care will be needed where this involves changing terms and conditions of employment, as the correct procedures will need to be followed.  

In Germany, the ECJ judgment reinforces the position already established by the German Federal Labour Court, which ruled in 2009 that the travel of field service workers, sales representatives, etc, both between clients and also the first and last journeys of the day between client and the employee's home, could be considered part of their fundamental contractual obligations, as these employees were unable to comply with their obligations without the travel.  Under German law, such travelling time which is compulsorily linked to the employee’s job performance has to be remunerated and the remuneration must comply at least with the requirements of the new German Minimum Wage Act, ie, EUR 8.50 per hour.