Does the time that peripatetic workers (i.e. workers who are not assigned to a fixed or habitual place of work) spend travelling from home to their first customer, and from the last customer back to their homes, count as 'working time' for the purposes of the Working Time Directive? Yes, suggests Advocate General Bot in Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another.
Tyco Integrated Security SL (TIS), a Spanish company, employs around 75 workers to install and maintain security equipment at customers’ properties. All workers are assigned to the central office in Madrid but each has responsibility for a particular geographical area and can travel up to 100 km a day from their home to attend customers’ properties.
Under TIS’ policy, neither the journey from the worker’s home to the first customer nor the journey from the last customer to the worker’s home is counted as working time. TIS, therefore, calculates the working day (and therefore the workers’ pay) as running from the worker’s arrival at the first customer of the day to the time that the worker leaves the premises of the last customer.
Advocate General Bot (“AG”) noted that there are 3 criteria that determine the classification as working time:
(i) a spatial criterion (to be at the workplace);
(ii) an authority criterion (to be at the disposal of the employer); and
(iii) a professional criterion (to be carrying out the activity or duties).
In the AG’s view, the travelling time in the present case met these three criteria and, in the case of peripatetic workers, the time spent travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes working time. The AG considered that for peripatetic workers, who are required to work at different premises every day, travelling is an integral part of the work and is therefore inherent in the performance of the activity. Workers were at the employer’s disposal during the travelling time as they were travelling to customers determined by their employer in order to provide services for the benefit of their employer.
The AG rejected the suggestion that workers would take advantage of the journeys at the beginning and end of the day to carry on their personal business. Such a fear was not sufficient to alter the legal nature of journey time and it was up to the employer to put in place the necessary monitoring procedures to avoid any abuse.
The recommendation of the Advocate General is not binding, but it is usually followed by the European Court of Justice. Employers who follow TIS’ practice of calculating working time should therefore give consideration to whether this is the most appropriate way to calculate working time and if changes should be made.
Action points:
- Assess amount of time employees spend travelling to/from first and last customers to home.
- Consider whether this means they would exceed the 48 hour weekly working time limit. If so, seek a signing working time waiver from the employee.
- Calculate whether this travelling time would result in employees receiving less than the National Minimum Wage. If so, consider how this can be rectified, e.g. making additional payments.
Amy Jones is an Employment Law Solicitor. We are always delighted to talk without obligation about whether we might meet your needs. Call Amy on 01382 229111 or email ajones@thorntons-law.co.uk
