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Last week the European Court of Justice (ECJ) delivered their verdict that travel time to and from work for non-office based employees will now be classed as working time.

Originally the case (Federacion de Servicios Privados v Tyco Integrated Security) centred on a Spanish company whose employees were required to travel between client premises installing and maintaining security equipment.  The employees became home based due to the closure of their office.  The argument started as to whether the time spent travelling at the start and the end of their working day should be classed as ‘working time'.

Previously under the Working Time Regulations it was considered that working time did not include travel to and from work.  The company therefore argued that this remained the same even with the change to a home base.   The employees disagreed stating it should be classed as working time, that the journeys varied greatly with occasions up to 100km and that they should also be paid for this additional ‘time'.

As the case rumbled on, the Spanish Courts sought clarification on the term ‘working time' in respect of the EU Working Time Directive and referred the matter to the European Courts.

The ECJ have ruled that travelling to and from the first and last appointments by employees with no fixed office should be regarded as ‘working time'.   This is a significant change and is likely to affect thousands of employees such as Carers, Engineers, Sales Reps and ultimately anyone without an office base.

What happens next?

There are two key points that employers who employ non-office based staff should consider in respect of this change. 

Firstly, the additional hours that will now be classed as ‘working time' may push these employees over the 48 hour weekly limit in respect of the Working Time Regulations. 

The second issue surrounds pay and whether this means that these employees may now fall under the National Minimum Wage limit when the additional hours are included.

However it is important to recognise that the two pieces of legislation are not linked and the National Minimum Wage does exempt travel time from payment.  This means that a separate legal claim would need to be established to enforce this change.

Overall, the purpose of this claim was to protect the health and safety of employees in the workplace and to prevent working hours in addition of 48 hours.  It should be noted that only the UK allow employees to opt out of this limit and as such, this ruling will have even more significance across the rest of the EU.

In the UK, employers with non-office based staff should now consider the potential impact in relation to working hours and pay for those employees.  We are likely to hear more over the coming days and weeks regarding these changes.

There will be options available to employers. For example, employees may now be asked to attend at the office first before travelling to their first appointment. The time to and from the office location would not be working time. The practical effect of this could be that employees spend even more time travelling!

A further option is to make a minimum payment (NMW) for travel time.

It will however be important for anyone who may work in excess of the 48 hours to agree to the 48 hour opt-out. If they are not prepared to do this (and they are under no obligation to do so) then arrangement will have to be made to shorten their working week.

Paula Fisher. You can contact Paula at paula@practical-hr.co.uk