Mobile workers, travel time and the Working Time Regulations

The issue of whether mobile workers’ travelling time between their home and the premises of their first and last customers counts as ‘working time’ under the Working Time Directive, has been a hot potato for some time.

In a Spanish case yesterday, where workers were assigned to a central office, but had no fixed place of work and were each responsible for a geographical area which involved travelling varying distances but returning to their home each day, the European Court of Justice held that time travelling from a worker’s home to a customer’s premises, or vice versa was in fact ‘working time’.

The court considered arguments that travelling time was a ‘rest period’ as the workers were not physically carrying out any work as well as the fact that the workers had complete autonomy to determine their own itinerary and which routes to take.

The Court concluded that:

• travelling was an integral part of being a mobile worker and their place of work was not restricted to their customer’s premises;
• the journeys were necessary to provide their services to the customer;
• the workers were at the disposal of their employer; and
• the travelling time could not be shortened or else used freely by the workers for their own purposes or interests.

What does this mean for UK Companies?

The Working Time Regulations 1998 (“WTR”) implement the Working Time Directive. Amongst other things, the WTR govern hours of work, night workers, rest breaks and paid holiday, each of which may now be affected by this decision and are considered below.

Hours of work and night working

An employer should ensure that a workers’ average working time does not exceed 48 hours per week unless they have opted out of this restriction. If travelling time to and from the first and last job of the day now counts as working time, it may be that an employer could fall foul of this restriction. In addition, where long journeys are involved on a regular basis, requiring an early or late start or finish, employers needs to ensure that the workers are not classed as night workers, whereby they are afforded additional protection and subject to different working time limits.

Rest breaks

Workers are entitled to a rest break of 20 minutes when working more than 6 hours per day and 11 hours uninterrupted rest per day. With the addition of travelling time, employers need to ensure they are providing workers with adequate rest breaks to avoid contravening the legislation and breaching their duty of care for the worker’s health, safety and welfare.

Holiday

Where employees are contracted to work a set number of hours, with travelling time counting towards working time, it may be that remuneration needs to be addressed. If the workers are paid overtime for any hours worked in excess of their contractual hours, following the judgment last year, it may be that the worker’s holiday pay will also need to be calculated, based on average earnings, including overtime payments. It is clear that the decision will have far reaching financial implications for UK Companies.

Employment Contract considerations

It is obligatory for employees to have a written statement of terms and conditions of employment. This includes provisions such as remuneration, holiday and working hours. Any changes to contractual terms should be updated within 1 month of the change becoming effective and it is advisable to review your employees’ contracts.

For advice or assistance on any employment law related matter, please contact Lianne Payne, Head of Employment at Askews Legal LLP.
E: Lianne@askewslegal.co T: 024 76 231000

Askews Legal LLP -Coventry Solicitors.