Implications of the decision on ‘mobile workers’ working time

If you are an employee without a fixed or habitual place of work, or employee such workers ( which are also known as peripatetic workers) – these may include staff such as employed tradesman or sales representative - a recent landmark Employment Law case may have implications for your rights or responsibilities.

The European Court of Justice (ECJ) case concerned the company Tyco Integrated Security which installs and maintains security equipment in Spain. The company did not treat employees’ travel from home to customers’ premises as “working time” under the Working Time Directive. The company maintained that the workers travelling between their home and the premises of their first and last customers of the day were not in “working time”. The definition of “working time” is important as it is likely to have a bearing upon pay and (in the UK) the employer’s compliance with rules concerning employees working in excess of a 48 hour week.

The ECJ confirmed in its judgment that the first and last journeys of the day to customers’ premises should be regarded as “working time” on the grounds that:

1. During these trips the employee was at the employer’s disposal;

2. The employee would be carrying out their activity or duties in accordance with national laws and/or practise.

The ruling does not change the status of the “daily commute” to an employee’s usual place of work (office, factory etc). Those journeys are not considered to be in “working time” for the purposes of the Regulations.

However, there are a number of possible implications for those employers with staff that fall within the category of not having a fixed place of work and whom travel to and from different sites. These include:

a) Increased wage bill (although much would depend upon workers’ contractual terms). For workers paid on an hourly basis, this court decision effectively increases the number of hours the employee is entitled to be paid for.

b) Employees working week may now exceed 48 hours placing the employer in breach of the Working Time Regulations (unless the employee has already signed an “opt out” in relation to the 48 hour weekly limit).

c) Employees may attempt to raise the issue within the context of the national minimum wage, notwithstanding that separate specific rules exist defining travel time under the minimum wage Regulations. This is only likely to become an issue where employees are being paid the minimum wage, or close to, and the increase in working hours brought about by this decision means their salary now no longer equates to the minimum hourly wage. If this is the case within your businesses, it is recommended action is taken immediately so as to remain compliant.

If you require advice about this or any other employment law matter, please contact Holmes & Hills Solicitors' Employment Law specialist, David Dixey, on 01376 320456.