Working time and peripatetic workers

“Tumble out of bed
And stumble to the kitchen
Pour myself a cup of ambition
And yawn and stretch and try to come to life”

Words of wisdom from Dolly Parton but following a recent decision from the European Court of Justice it may no longer be a simple matter of assuming that the working day is 9-5 for certain classes of worker.

What is it all about?

A recent judgment in the European Court of Justice has cast doubts on what might have originally been regarded and treated as “working time” for peripatetic employees.

Peripatetic employees are frequently known as “mobile” workers. These are workers who have no fixed base and who travel, usually to and from appointments, in the course of the working day.

For the purposes of the Working Time Directive it has been decided that time spent travelling to the first appointment of the day and home from the last appointment of the day counted as ‘working time’ for mobile employees.

The decision does not apply to all workers. Those workers who have a fixed base will not be covered by the decision.

Why should you care?

There are a variety of obligations, protections and remedies in the Working Time Regulations (WTR) (which emanate from the Working Time Directive (WTD)) for workers in the UK. Any person who claims that they have been obliged to work longer than the maximum week, not been afforded appropriate rest breaks or similar, can pursue a claim for compensation at the Employment Tribunal. Compensation for these forms of infringements is judged looking largely at the impact and severity of the breach and not necessarily on financial loss.

Separately, there are also protections and remedies in relation to subjecting an employee to a detriment or dismissing them for doing anything with regard to their rights. Again compensation can be significant.

The Health and Safety Executive (HSE) will expect to be able to inspect records of working time under the Working Time Regulations in order to assess whether or not there has been an infringement. HSE is responsible for the enforcement of the maximum weekly working time limit, night work limits and health assessments for night work.

Tricky questions can also arise in relation to whether or not this decision means that mobile workers should start their day at their contracted start time (only setting out on their travels at that stage) or whether this has an impact on wages, as appears to be suggested by certain trade unions and other commentators.

What do you need to know?

The case of Federacion de Servicios Privados del sindicato Comisiones obreras) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA is a case decided by the European Court of Justice, looking at the law as stated in the WTD.

The WTD is the parent legislation to the WTR. Usually, the WTR has to follow decisions of the ECJ in relation to the meaning and effect of the WTD, as has recently been separately highlighted and demonstrated by the ongoing saga of holiday pay under the WTD and WTR (of which we have blogged at length).

The employees in question used to report to regional offices before going out on their first appointments. On the regional offices being shut, they were not obliged to report anywhere; they had a company vehicle, which was kept at home. They took that vehicle and it was their vehicle to drive to all of their appointments – and they ended up with it back home at the end of their working day.

The employees were truly “peripatetic”. They were told where to go and when by their employer, who set the places they had to visit and the times that they had to be there by. Moreover, the individuals concerned were not able to set their own schedules.

The European Court of Justice decided that the employees were carrying out their duties over the full duration of the day. The employees were at their employer’s disposal during their journeys and were not free to pursue their own interests.
This decision means that for “mobile” workers the time spent at the beginning and end of the day amounts to “working time” for the purposes of the Working Time Directive. This may have significant ramnifications for employers.
For example, if the WTR is interpreted and applied in line with the WTD (which one would expect the tribunals to), mobile workers who choose not to opt-out of the maximum working week set by the WTR (of 48 hours) will be entitled to work for 48 hours and no more.

Similarly, mobile workers will be entitled to insist that they have appropriate shift lengths and breaks between their work, both in respect of individual days and collectively.

Employers are under various obligations to monitor and check working time rules are being complied with, with the WTD and WTR being seen to be driven by a social policy of protecting workers health and safety.

Unless employers already treat mobile workers time in this way, for employers the decision means that there will be a knock on effect to:-

• The length of the working day
• The time that is considered at work for the purposes of calculating rest breaks
• The calculation of the 48 hour working week.
• Each employer will likely face their own unique circumstances. However it would be advisable to:-
• Check who is treated as a mobile worker within the organisation concerned;
• Check who is in law a mobile worker within the organisation concerned;
• Check and potentially change how working time is monitored;
• Consider how the employer can direct people to take the shortest route to and from their appointments;
• Work out the implications of what this means for people’s travel time – are workers going to be able to stop for a coffee, pop in to the supermarket, or pick the kids up from school?
• Consider the data protection implications of employee monitoring;
• Consider the privacy issues in relation to employee monitoring;
• Check contracts of employment and consider whether they require to be altered; and
• Consider whether and to what extent the employer may want to change workers’ work patterns and if so, the implications for the same – would any change be tantamount to a redundancy situation?

Does this apply to wages claims?

There may be further issues raised in relation to the application of the National Minimum Wage (NMW), if it turns out that the employee is being paid too little for the amount of time spent working for the purposes of the NMW legislation.

However, this case is not a binding authority to say that a person’s time spent travelling between their home and their first or last customer/visit of the day is time that should be included for the purposes of deciding whether or not the employee has been paid the NMW, because the NMW legislation is different to the WTR.
The NMW legislation is UK-only legislation; it does not derive from the WTD or otherwise from Europe. The definition of working time for the purposes of the NMW is different to the WTR and, although there may be a perceived crossover between the two pieces of legislation, in reality there is no authoritative value in this Judgment.

Comment

This has the potential to be a significant decision and is likely to require further detailed advice to be properly considered and applied to individual organisations. With individual claims, collective claims and separately HSE enquiry and enforcement action all possible, together with reputational risk arising from being found to be in breach of the WTR in this area, employers need to review their working arrangements and make sure that the relevant changes are made, where required.

The changes may not only relate to policies and procedures, but contracted hours and what can be reasonably be expected of a mobile worker within their working week.

Employers will also have choices to make, for example, in how they deal with unwelcome issues such as traffic jams or accidents; what if a mobile worker gets stuck in traffic and their return journey takes 4 hours instead of 1 hour? Will mobile workers have to operate a self-declaration system, in order for working time to be monitored, or wlll GPS be used?

Some trade unions have intimated that this decision is likely to have significant ramifications for organisations, but whether that proves to be the case or not will depend on an assessment of the particular mobile workers details.
Wider structural issues may arise if the employees are recorded as working more than 48 hours per week because in such circumstances they would be perfectly entitled to withdraw their agreement to work longer than 48 hours per week and they could not be forced to maintain their opt out.