Get paid by your employer for travelling around? Could soon be a reality for some workers following a recent opinion of the Advocate General of the ECJ.
The Advocate General (Yves Bot) has this week drafted an opinion that travelling workers without a regular fixed place of work should have their travel time to and from their first and last assignments treated as “working time”. While the opinion of the Advocate General is not a binding legal decision and accordingly should be treated with due caution, in practice such opinions are highly persuasive and often followed by the European Court of Justice (ECJ).
Background
The matter leading to this opinion – referred to the ECJ by the Spanish National Court – concerned a claim brought by travelling security system technicians. As part of their role, these technicians were notionally based at their home address and were assigned their own geographical areas of work, within which they would attend appointments, repairs and consultations. Each technician was issued a smartphone loaded with an app by their employer: Tyco Integrated Security SL (“Tyco”). Details of jobs requiring their attendance were communicated to technicians via this app. Each technician also had use of their own company vehicle to allow them to travel:
- from home to their first assignment;
- between appointments within their region;
- back home from their last assignment
Tyco, in establishing the technicians’ hours of work, included only time spent travelling between appointments as “working time” (category ii). Time spent travelling under categories i and iii was discounted. The technicians claimed that their employer’s decision to exclude such time was in contravention of the Working Time Directive.
Rationale
At first glance, it would appear that categories i and iii were rightly being excluded by Tyco. It has generally been accepted across the employment sector that time spent travelling cannot count as working time unless “actually part of work activity” (HSE “The Working Time Regulations 1998: Guidance on the legislation”). For those whose work is at a fixed locale, time spent “commuting” to and from work could not fall into this exception. This general theme is reflected in other areas of the law, e.g. income tax. For example, Section 338 of the Income Tax (Earnings and Pensions) Act 2003 expressly excludes such commuting to and from a fixed place of work from being treated as a deduction of income tax purposes.
A significant part of the rationale behind having such travel time excluded from the definition of “working time” is down to the fact that workers are not at the disposal of their employer at such points in time. A worker on a train coming into work is not necessarily in a position to execute task given to him by his employer.
Opinion itself
In drafting his opinion, the Advocate General highlights that the above relates only to fixed location workers and should not apply to “peripatetic” workers. Such workers are those involved in jobs which – by their very nature – are nomadic. Examples include airline pilots, travelling salesmen and saleswomen, supply teachers, etc. The Advocate General has opined that, for such workers, the time spent travelling:
- from home to their first assignment location; and
- from their last assignment or location back home
falls within the definition of “working time” at Art 2 (1) of the Working Time Directive. In coming to this decision, the Advocate General noted the question of “working time” is binary: it either is “working time” or is not. The European Commission did previously investigate the possibility of introducing a third category here – “on call” time – which would have constituted a halfway house between “working time” and “rest time”, but this was rejected.
In the absence of this compromise position, the Advocate General was forced to categorise the technicians’ travel time as either “working” or “rest”. He ultimately decided on the former on the basis the technicians’ travel time still satisfied the requirements for “working time”:
- Spatial – that the employee is required to be at a certain place for work purposes;
- Disposal – that the employee put themselves at their employer’s disposal; and
- Execution – that the employee is expected to be carrying out work specified by their employer
According to Advocate General Bot, travel was an intrinsic and defining element of peripatetic work. As peripatetic workers lack a central location from which they go to at the beginning of shifts, etc, their travel to particular appointments or places is wholly determined by their employer. The technicians’ first assignment destinations were determined by their employer in order that they may carry out work for their employer’s customers. As such, the second and third prong of the “working time” test was also satisfied.
Impact
As stated above, it is entirely possible for the ECJ to reject the Advocate General’s opinion and come to a different view. Assuming that that does not occur, the implications for affected employers could be significant. Where a peripatetic worker operates inside a large geographical area or where travel from the worker’s home to the assigned location takes a significant period of time, these additional costs may be passed on to the employer. Where a peripatetic worker has large distances to cover or is delayed in their travel, an employer will effectively be required to pay the worker for waiting around.
A potential way to counter this opinion may be by employers of peripatetic workers deciding to “base” their employees at particular regional offices, where all workers must report to at the beginning of the working day before attending assignments. They would then be required to return to that base at the end of the working day, before returning home.
The Advocate General’s opinion may also lead to additional administration costs. For instance, sign in procedures may need revising to ensure that peripatetic workers do not simply make their way to assignments or locations direct from their home. This may also have an impact on service users and customers of employers who engage peripatetic workers. Where workers must “touch base” before heading to appointments, there is an increased chance that employees may be late for customer meetings. For affected peripatetic workers, there will likely be an increase in overall time spent travelling to allow these detours to “touch base” to occur.
While the Advocate General’s opinion is just that – an opinion – it will be very interesting to see if his logic is followed by the ECJ itself and what the full ramifications of this opinion will be in due course.
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