Legal Updates

Does Travelling to Work Count as Working Time? Potentially yes according to the ECJ

Written by Laura Rooney

The European Court of Justice has confirmed that workers who have no habitual workplace can count the time spent travelling from their home to the premises of their first customer and from the premises of their last customer back to their home as “working time”.

What’s happened?

In the case in question, the employer, a Spanish company that installs and maintains security equipment, calculated the start of the working day as the time when the worker arrived at their first customer’s premises and deemed the end of the working day to be the time when the worker left their last customer’s premises. The workers challenged this classification as being contrary to the EU Working Time Directive.

In June 2015 the Advocate General gave his opinion that travelling was an integral part of the work of these “peripatetic workers” and was a necessary means of providing services to the customers, meaning that it should be regarded as forming part of the workers’ activities. All time had to fall within ‘working time’ or ‘rest’ and whilst travelling did not fit neatly into either, there was no category in between.

The ECJ has now confirmed the conclusion of the Advocate General, adding that any period during which a worker is at work, at the employer’s disposal and carrying out his or her duties is deemed to be “working time”. The workers in question were not free to use the time spent travelling to and from their homes as they pleased and they were therefore deemed as being at the employer’s disposal during this time.

What does it mean in practice?

A lot of the headlines have suggested that this ruling gives UK workers a right to additional pay. This is not the case. There is no European right to national minimum wage. The National Minimum Wage Act is a UK specific right and the legislation specifically excludes travel from home to work as attracting payment in this regard. Whether this will be changed going forward, in light of this new ruling, remains to be seen but for the time being employers need not adjust their payment arrangements.

The real consequence of this judgement is on working time and rest breaks. Employers should be alert to the possibility that an increase in the number of hours worked by their workers may lead to a breach of the Working Time Regulations as workers may be entitled to more rest periods in line with their increased hours and may exceed 48 hours per week, in which case a specific opt out agreement is required.

Contact the Author

Laura Rooney

Gordon Dadds