CIPD (Rebecca McGuirk): Implications for employers could be huge, affecting pay, and health and safety. The Advocate General of the Court of Justice of the European Union (CJEU) has given an opinion on a case referred to the court to determine whether time spent travelling to and from the first and last customers of the day counted as ‘working time’ under the European working time directive. As mobile working becomes an increasingly common approach in a wide range of sectors this opinion, if followed by the CJEU, could have huge implications for employers in relation to a vast array of issues, including workers’ pay, and their health and safety.
The case, Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security, involved technicians who installed and maintained security equipment in homes and business premises in Spain. Although the technicians were assigned to the employer’s central office in Madrid, they were also each assigned to geographical areas in Spain. The extent of their travel varied from day to day and could sometimes be over 100km.
An app on the technicians’ mobile phones allowed them to receive, on a daily basis, the task list for the following day, showing the premises they were required to visit that day. The technicians had the use of company vehicles in which they travelled to and from their homes to that day’s calls. Under the employer’s policy, the first and last journeys of the day were not counted as ‘working time’ and were treated as part of the technicians’ daily rest period. The technicians’ working day was, therefore, calculated from their arrival at their first customer of the day to the time that they left the premises of the last customer. They claimed this was contrary to the working time directive.
The opinion says that in the case of ‘peripatetic workers’ (those not assigned to a fixed or usual place of work) time spent travelling from home to the first customer designated by their employer, and from the last customer designated by their employer to their homes, does constitutes ‘working time’ within the meaning of the directive.
Under Article 2(1) of the directive three components must be met in order to constitute ‘’working time’. Workers must be:
- at the workplace
- at their employer’s disposal
- carrying out their work activities or duties.
- the travelling by the technicians was a necessary means of providing their services to the customers designated by their employer and, therefore, was an integral part of the job
- the workers were travelling to customers that had been pre-determined by their employer and were at their employer’s disposal since the journeys and distances depended exclusively on the employer’s wishes
- the technicians were engaged in work duties when travelling because, for peripatetic workers, this is an integral part of their work.
While this is only an advisory opinion and does not bind the CJEU, such rulings are influential and are followed in the majority of cases. We will have to wait and see whether this happens in this case when the full court judgement is given later this year.
In the meantime, the opinion is a helpful indicator for employers about what the scope of working time may encompass. What is clear from this and from other recent working time cases is that the more control an employer has over a worker’s time, the more likely that period is to be ‘working time’.