Should employees be paid for driving to and from work? ECJ looks at working time and travel

If you employ workers who have no fixed workplace and are required to travel to service clients, are they working when they travel to the first client or return home from the last client?

According to the Advocate General’s Opinion in the Spanish referred European Court of Justice (ECJ) case, Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor, this is indeed working time.

There are two important caveats, however. Firstly, this is the Advocate General’s Opinion – it is used as guidance for the ECJ and is often followed but it is not binding. It will be likely some months before this decision.

Secondly, and most importantly for employers, just because this period may be working time for the purposes of the European Working Time Directive (the origin of the UK Working Time Regulations 1998), it does not mean that it automatically falls within the National Minimum Wage (NMW) Regulations. These regulations are entirely separate from the Working Time Regulations and not derived from European law. Further, there is an express exemption at Regulation 15(2)(b) of the NMW Regulations meaning that travelling time to and from the place of work or place “where an assignment is carried out” meaning separate claims would have to be raised in order to establish that this time attracts the obligation to pay at least the national minimum wage.

The facts

This case concerned two Spanish companies who install and maintain security equipment throughout Spain. The employees of these companies were required to travel between clients but the issues arose at the beginning and end of the employee’s day. The companies argued that the time employees spent travelling to and from their homes to the first and last clients did not amount to working time. However, the employees argued that these travelling periods amounted to working time and merited payment as in some circumstances the employees were required to travel up to 100km to attend the premises of the first client.

Accordingly, the Spanish courts sought clarification of the term ‘working time’ with regards to the EU Working Time Directive and referred this issue to the European Courts. In the Opinion of the Advocate General, this travelling time should be considered as working time. In order for the actions of an employee to be considered as work, the employee must be:

1. at the work place;
2. at the disposal of the employer; and
3. carrying out activities or work duties.

As such, the AG said that for workers who are required to attend different locations throughout their working day, travelling is an integral part of their work and is therefore inherent in the performance of their activities. Additionally, because the employees were travelling to clients selected by the employer the criteria outlined above were clearly met.

It was argued (in my view somewhat tenuously given the employees were travelling by car) on behalf of the companies that employees would take advantage of the journeys at the beginning and end of the day to carry on their personal business. However, such fears were not sufficient to alter the legal nature these journeys. The Advocate General said that this would be an issue for employers to consider and subsequently implement the necessary monitoring procedures to avoid any abuse.

So what could this mean for you as an employer?

The short answer is that there is no direct impact, but a watching brief should be maintained. As outlined above, this case is not yet decided by the ECJ itself. Further, as explained above, there would have to be further litigation for the impact to be felt beyond the Working Time Regulations and into the NMW Regulations. However, it is yet another example of increased scrutiny on what constitutes working time and whether it is being paid appropriately. There has been a series of cases on “sleep in” night shifts over the past few years and employers will be aware of the recent holiday pay cases in relation to commission and overtime. It is likely that this will continue to be an active area of litigation for the foreseeable future.

If you are concerned about how your business treats working time or holiday pay, please contact Scott Milligan or another member of our employment law team.