Travelling time – is it “working time”?

In late 2015, the European Court of Justice ruled that where an employee has no fixed place of work, travelling time between his home and his first job of the day – wherever that may be – ought to count as “working time” in respect of the Working Time Directive. Equally, travelling time between the last job of the day and the employee’s home, would also count as “working time” under the WTR.

That case concerned mobile technicians employed by a Spanish company called Tyco. The technicians were required to travel to the premises of Tyco’s customers to install, maintain and repair security equipment. As such, they had no fixed place of work and each day would likely see them travelling to several different sites. Therefore, this ruling will impact on UK workers who also have no fixed place of work; particularly those who, as in the Tyco case, are employed specifically to attend on different sites each day.

However, it ought to be noted that this ruling does NOT entitle mobile workers to be paid for their travelling time. The issue of pay is a separate issue regulated by separate legislation and the contract of employment itself. The Tyco decision is only relevant when considering what constitutes “working time” in terms of the Directive, and the Directive is not concerned with a worker’s pay.

Generally speaking, UK legislation specifically excludes travelling time when considering employee remuneration, even for workers with no fixed place of work. The primary effect of this decision will not relate to pay, but rather the working week as a whole. If travelling time is to be considered “working time” then this will impact on an employee’s weekly hours, rest periods, break entitlement etc. An employer will have to consider whether, in light of increased “working time”, an employee is receiving sufficient rest time between shifts, and his hours are not exceeding the weekly working time limit of 48 hours per week.

Additionally, the decision will potentially impact on overtime arrangements. It may be possible to successfully argue that due to an employee’s travelling time now being considered part of his contractual hours, any hours worked (including travelling time) beyond his contracted hours ought to be considered overtime, and paid at the appropriate rate. Thus, a mobile worker may find himself working in his usual pattern, but enjoying overtime hours and overtime rates by default, depending on his travelling times on any specific day.

It follows that, in limited circumstances, it may be possible to claim backdated overtime, now that it has become clear that travelling time is to be considered “working time.” This will be difficult to pursue, and will likely boil down to the wording of an employee’s contract. As above, the National Minimum Wage legislation excludes travel time when considering remuneration. However, it is possible that poorly-worded contracts may still give rise to backdated claims. Where a contract is ambiguous over precise hours, or states emphatically that all “working hours” are to be paid, then it may be possible to argue an employee has suffered an unlawful deduction from wages by not being paid for his travelling time. It may also be possible to argue overtime rates should have been applied to a portion of the travelling hours.

Finally, we may also see implications in relation to personal injury law, where an employer may be liable for injury suffered by an employee “in the course of his employment.” If such an injury were to occur whilst a mobile worker was travelling from home to a job (or vice-versa) it would seem reasonable to say that the accident occurred within the course of his employment. Given the Tyco decision, the employee would have been in “working time” when the accident occurred. As such, we may see a broadening of the circumstances where an employer may be held liable for injury to an employee. It remains to be seen how matters may develop in this area.

The full implications of the decision have not yet been realised by employers but if you are a mobile worker and feel you may have a case against your employer, then please contact either Brian Tait or Alan Rodgers in Drummond Miller’s employment law team.