Does travel to and from work count as working time?

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The European Court of Justice (ECJ) has provided guidance on what constitutes working time for those workers with no habitual workplace.

The ECJ looked at whether, for these types of workers, time spent travelling from home to customers’ premises and vice versa was working time under the Working Time Directive. It was concluded that it was.

The case arose as a result of two companies within the same group who employed technicians who were each assigned to a particular province or area of Spain. During 2011, the provincial offices were closed and all employees were assigned to a central office in Madrid.

The technicians use a company vehicle to travel from their homes to the places where they carry out their duties and then return home at the end of the day. The companies considered that the first journey of the day or the last journey home were “rest periods” and that the working day started when the technicians arrived at work and finished when they left their last assignment. Prior to the provincial offices closing, the employees calculated the working time as starting when a technician arrived at the office to pick up the vehicle and task list and finishing when they arrived back at that office to return the vehicle.

The technicians asserted that their first and last journeys of the day also amounted to working time. The Advocate General gave his opinion and stated that he considered that the first and last journey should be considered to be working time. He reached this conclusion based on the fact that traveling is an integral part of being a worker with no usual workplace, the journeys are subject to the authority of the employer and as travel is essential in the performance of the duties, it must be regarded as forming part of the “activity or duties” of those workers.

The ECJ agreed with the Advocate General and noted that not taking the journeys into account could have health and safety repercussions. It was also noted, in response to the companies’ concerns, that because the workers are “at the employer’s disposal” for the time of the journeys, they should act under their employer’s instruction and cannot use that time freely to pursue their own interests.

This ruling could have a significant impact on those companies who employ mobile workers who spend a lot of time travelling between customers. The main impact would be on working time and rest breaks. One consideration will be whether staff should be asked to opt out of the Working Time Directive’s 48-hour working week given that the first and last journeys will have to be taken into account.

If you require any advice or support on this issue, please feel free to contact our expert team of employment solicitors.

Written by
Edward Aston
15th September 2015