Mobile workers' first and last journeys of the day - are they working time?
For mobile workers, time spent travelling between their homes and customer premises in the first and last journeys of the day can be “working time” for the purposes of the Working Time Directive (WTD) on the basis of the Court of Justice of the European Union (CJEU) decision in the case of Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL.
Tyco employed technicians to install and maintain security equipment at customer premises in Spain. The technicians were mobile workers, i.e. they did not have a "fixed or habitual place of work". They were provided with a vehicle and travelled to various locations to install and maintain equipment. Prior to 2011, the technicians travelled each day to a regional office where they received their instructions for the day. This commute to/from the regional offices was not considered to be working time by Tyco. In 2011, Tyco closed its regional offices and attached all of its workers to a central office in Madrid. It appears that the territory within which the technicians could be instructed to visit customers was unchanged. After the closure, they were provided with a mobile phone and each night they had to check an “application” to get their appointments for the next day. They drove straight from their homes to their first appointment of the day and returned home after their last appointment. The question for the CJEU was – were these journeys working time?
The WTD provides that “working time” covers any period during which a worker is:
- at their employer's disposal
- carrying out their activities or duties in accordance with national laws and/or practice.
The CJEU analysed each of these points in the context of the technicians’ daily arrangements.“Working”
The CJEU decided that the technicians were working. It stated “given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the physical areas of their work on the premises of their employer’s customers”. The CJEU was sympathetic to the fact that the change in operating practices had not been caused by the technicians, going on to state: “having lost the ability to freely determine the distance between their homes and the usual place of the start and finish of their working day, they cannot be required to bear the burden of their employer’s choice to close those offices.”“At their employer's disposal”
It was argued that the technicians were not "at their employer’s disposal” because they did not have to keep their phones on during the first and last journeys of the day and were free to choose the routes they wanted on those journeys. The CJEU disagreed, pointing out that the technicians were still acting on Tyco's instructions at these times, e.g. Tyco could change the order of customers or cancel or add an appointment and the workers were not able to use their time freely to pursue their own interests. The CJEU said that, while this time may be open to abuse by the technicians (i.e. they could use it to attend to their personal business), that had also been the case before the regional office closures. The CJEU felt that monitoring arrangements could be implemented by Tyco to seek to police this point. For example, through tracking petrol costs and mileage in the company vehicles.“Carrying out their activities/duties”
Tyco argued that time spent travelling between home and customers was not working time because the technicians’ activities/duties consisted of installing and maintaining security systems, which they clearly were not doing when they were travelling. The CJEU did not accept this argument, stating that such a narrow interpretation “would distort [the concept of working time] and jeopardise the objective of protecting the safety and health of workers”. Again, the CJEU emphasised that the workers should not be penalised for the employer’s decision to close the regional offices, stating “the nature of those journeys has not changed since the abolition of the regional offices. It is only the departure point of those journeys that has changed.”
The WTD has been implemented in the UK via the Working Time Regulations 1998 and any Employment Tribunal hearing a working time case must take account of the Tyco decision.
Many employers will be in the same situation as Tyco, having closed regional offices, hubs, etc to gain operational efficiencies through the use of technology. The CJEU clearly gave a lot of weight to this point when coming to its decision but it is unclear whether the decision is limited to such scenarios or is a general statement of principle affecting all mobile workers.
For example, would it apply to mobile workers who were not themselves previously subject to the closure of a regional office/hub, i.e. mobile workers who from “day one” had signed up to an arrangement whereby their first and last journeys of the day (i.e. between their homes and customer premises) were not thought of as working time?
It might be argued that such workers were in fact able to “freely determine the distance between their homes and the usual place of the start and finish of their working day” i.e. when their employment began they would have known they were agreeing to a role covering a certain geographical area. However, given the CJEU's emphasis on the underlying health and safety focus of the WTD, it must be questionable whether the CJEU would accept such an argument in all circumstances.
Also, the Tyco decision appears to be limited to the analysis of travel between home and the first and last customer locations. So if an employer has several office or operational locations within a particular discrete region and elects not to allocate an employee specifically to one of them, as the role may need to be carried out from time to time at various of them, it seems less likely that the first and last journeys (i.e. between home and employer locations) should be categorised as working time in that context. These journeys are more akin to a normal “commute” to work, which is not normally considered to be working time.
Businesses most likely to be affected by this decision are those who employ workers to carry out repairs and maintenance work at customer premises or who have a mobile sales force.
The Tyco decision will prompt both practical and financial review of current operations.Practical
The CJEU emphasises that the WTD is concerned with workers’ health and safety, not optimising organisational efficiency. Therefore, employers may need to reconfigure rotas, etc to ensure workers continue to get offered 11 hours of daily rest and do not exceed a 48 hour working week (unless an opt out has been signed).Financial
The WTD does not regulate remuneration - that is the function of national law. Consequently, for mobile workers who are salaried, the implications as regards individual remuneration may be minimal. Similarly, workers who receive the National Minimum Wage (NMW) are unlikely to be affected because the NMW legislation makes it clear that time spent travelling between a worker's home and their place of work or any place where an assignment is carried out (e.g. customer premises) does not count as "time work" for the purposes of that legislation, so the NMW is not paid for those hours. The impact is likely to be greatest where workers are entitled to overtime, but contracts of employment would need to be checked to establish whether such travel time would be covered.
This article first appeared in Law-Now, CMS Cameron McKenna's free online information service, and has been reproduced with their permission. For more information about Law-Now, click here.