Driving to work may count as work

Workers who do not have a fixed place of work or have to travel to perform their duties (‘peripatetic workers’) may now count the time they spend travelling to and from their first and last customers as ‘working time’.

This follows an important decision handed down by the European Court of Justice (ECJ) recently in the case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (c-266/14).

In this Spanish case, the employer ran a business installing and maintaining security systems. When the company closed its regional offices, the employer attached all employees to the central office in Madrid. The workers each had the use of a company vehicle in which they travelled every day from their homes to the places where they carried out the installation or maintenance of security systems. The distances from those workers’ homes to their places of work varied substantially, sometimes exceeding 100 kilometres.

The employer had been calculating daily working hours from the time when its employees arrived with the first customer of the day to when they left the premises of the last customer. However before the closure of the regional offices, the employer had counted the daily working time as starting when employees arrived at those offices, and ending upon the return of the company vehicle at the end of the day.

The ECJ, in reaching its decision, considered the Advocate General's opinion that the first and last journeys of the day should be classified as working time. There were three criteria to be considered:

• Travelling is an integral part of being a peripatetic worker. When such workers use a means of transport to travel to a customer, they must be considered to be ‘at work’.
• The journeys are subject to the authority of the employer, in that it could choose to cancel an appointment, or require the workers to call on additional customers on their journey home. The workers were therefore ‘at the disposal of the employer’.

Since the workers' travel is inherent in the performance of their activities, it must be regarded as forming part of the ‘activity or duties’ of those workers.

All of these criteria were satisfied and as such, this time should be considered as ‘working time’.

This case and the decision that followed was very particular in terms of its facts. Each case will be decided based on its own particular set of facts and circumstances. However, this decision could have implications for all employers who use peripatetic workers and they will need to think carefully about whether or not their employees should be paid for the first and last journeys of the day.

If you require advice or review of your Employment Contracts or Policies in light of this development, please contact our experienced Employment Team who will be happy to assist.