Working time and field based employees

Does a mobile workers’ time spent travelling from home to/from customers’ premises constitute “working time”?

In Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, the ECJ considered this question.

Karen Fletcher, Senior Employment Law Consultant at Analysis Legal looks at the ECJ’s latest decision on working time and the impact for employers when calculating working time for field based employees.

In summary, as a result of this case, time spent travelling to/from appointments at the start and end of a working day does count as working time.  This means that the time should be included when calculating minimum periods of daily and weekly rest, annual leave, breaks and maximum weekly working time.  This decision does not apply to remunerating workers (i.e. national minimum wage).  However, it seems likely that field based workers will start looking at the issue of pay during travel time.

So, how does this impact your business?

Many employers who have field based employees do not count working time until the employee arrives at their first customer’s premises.  Working time normally stops when the employee leaves their last customer’s premises.  However, often employees can spend several hours at the start and end of the day travelling to/from their customers.  The recent ECJ decision means that this time must now be included when working out how many hours field based employees are working each week.  The first question for businesses to consider is whether any field based employees have signed an opt out of the 48 hour maximum working week?  If so, there are less issues in the event the additional travel time takes them over an average 48 hour working week.  However, it is still advisable to consider any health and safety implications as a result of the increase in working time.  In any event, it is advisable to check the journey times of field based employees at the start and end of the day to see if this has an impact on the rest breaks and other breaks to which they are entitled.  In terms of pay, this ECJ decision does not impact directly on the issue of pay.  However, companies will also need to consider the terms on which field based employees are employed.  If they are on annual salaries, provided the additional travel time does not dilute their equivalent hourly rate to less than the national minimum wage, it should not impact on pay.  However, if field based employees are paid by the hour, or the total number of hours worked divided by their salary means that they are paid under the national minimum wage, they could potentially have a claim for additional wages.

What was the case all about?

In this case, Tyco had a number of technicians who installed and maintained anti-theft security equipment at customer sites, both private homes and businesses.  Until 2011, they had a regional office which they would travel to at the start of the day and then go on to their first installation.  In 2011, Tyco decided to close all the regional offices and the technicians were based in the field.  Tyco did not count the time spent travelling to the first customer and travelling home from the last customer when assessing working time.  On the facts, some journeys took up to 3 hours.

When the issue came before a Spanish court, the Spanish court referred the question to the ECJ.  ECJ decisions provide guidance on the interpretation of European laws and then it is up to the national court, in this case Spain, to apply the ECJ’s interpretation to the particular case in question.  There is no appeal against a decision of the ECJ.  As a result of the implications of the decision, the UK Government joined the proceedings as an interested party.

The ECJ took into account that the change to the technicians’ circumstances stemmed from the employer’s decision to close the regional offices, not from the decision of the employees themselves.  Tyco, the Spanish Government and the UK Government tried to argue that the workers were free to choose their own route to the first customer and could carry out personal business at this time as they had not started work.  However, the ECJ did not accept this argument, saying that it was only the point of departure which had changed (from the regional office to their home).  The ECJ also noted that the employer may change the order of customers or cancel/add an appointment during journeys meaning that employees were acting on the instructions of their employer during journey time.  The ECJ was particularly concerned about the health and safety implications of excluding this time for the purposes of calculating working time, particularly as on the facts of this case it could add up to 6 hours driving to a working day.  The ECJ was clear that this travel time is included in calculating working time.  The ECJ also noted that the method of remunerating workers in such situations is not covered by the working time directive but by relevant provisions of national law.

What should businesses do as a result of this decision?

As a result of this decision, businesses with field based employees should:

• Check whether their field based employees have signed a valid opt out of the maximum 48 hour working week.

• Check the payment terms for field based employees; are they paid an annual salary or an hourly rate? Do they receive overtime?

• Calculate the additional time added to working hours for each field based employee as a result of this decision and divide this by their salary over the same period to check that they are being paid at least the national minimum wage.

• Consider whether there are any health and safety implications as a result of the increase in working hours.

As a team of expert employment solicitors in Cheshire, we have the knowledge and experience to support your business and defend your interests in all circumstances. If you would like to discuss this issue, please contact Analysis Legal, and find out how we can help you.