Time spent travelling to and from home may not count towards National Minimum Wage
In Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, the Court of Justice of the European Union (CJEU) had to consider whether journeys made by workers without a fixed place of work, between their homes and the first and last customers of the day, constitute working time.
Backgound
The Working Time Directive (WTD) defines working time as any period during which the worker is working, at the employer’s disposal and carrying out his or her activities or duties, in accordance with national laws and/or practice.
Facts
Technicians employed by the Spanish company Tyco install and maintain security equipment in homes and commercial premises located in geographical areas assigned to them. They have no fixed place of work. The workers receive a list of the premises they are required to visit and the times of their appointments. They are provided with company vehicles for travelling from their homes to customers’ premises at the start of the day and for returning home at the end of the day.
The distances between workers’ homes and places of work are sometimes more than 100 kilometres and the journeys can take up to three hours. Tyco counts the time workers spend travelling between their homes and the premises of their first and last customers as rest periods and not working time. Spain’s High Court asked the CJEU whether this time should instead be regarded as working time within the meaning of the WTD.
CJEU
The CJEU held that where workers without a fixed place of work use a company vehicle to go from their homes to the premises of a customer or to return to their homes from a customer’s premises then they are working because they are at the employer’s disposal and carrying out their activities or duties.
The CJEU rejected the UK Government’s argument that its ruling would lead to an inevitable increase in costs, noting that Tyco is free to determine workers’ remuneration for the time they spend travelling between their homes and customers. The court stated that the WTD is concerned only with regulating working time and not remuneration, and that the method of remunerating workers in such a situation is a matter for national law.
Comment
This judgment has a number of implications for employers because UK courts and tribunals must interpret the Working Time Regulations 2015 (WTR) in such a way as to reflect the requirements of the WTD.
The ruling applies only to mobile workers who have no fixed or usual place of work and whose journeys between their homes and the first and last customers of the day now count as working time under the WTD. As excluding those journeys from working time would be contrary to EU Law, employers will need to take this into account to make sure they comply with the WTR when calculating employees’ maximum working hours and rest periods.
Under S.1 of the Employment Rights Act 1996, an employer is required to state in an employee’s written particulars of employment either the individual’s place of work or that he or she is required to work at various places. Employers therefore need to think very carefully about the details they provide.
Employers may also wish to review their pay practices in relation to mobile workers, and indeed may well have to deal with enquiries from such workers. As the CJEU made clear, employers are free to determine payment for the time spent by mobile workers travelling between home and customers. As far as compliance with the National Minimum Wage is concerned, national law applies. The 2015 regulations state that for ‘time work’ and ‘salaried hours’ work (two of the four types of work under the regulations) the hours spent travelling during normal working hours count towards the NMW, but this does not include travel between a worker’s home and a place of work or a place where an assignment is carried out.
Makbool Javaid is a partner and head of employment law at Simons, Muirhead and Burton
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