Taking travelling time into account

In a recent decision, the European Court of Justice has held that the time spent by mobile workers travelling between home and their first and last assignment of the day counts as working time (Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL C-266/14).

Working Time Regulations

For employers of mobile or field workers, working from home and travelling to meet clients directly from their home to the client’s office, the key issue raised by Tyco is whether they have to change their existing working patterns in order to comply with the restrictions on working time under the Working Time Regulations 1998 (WTR). Employers will note that the ECJ decision does not require the time spent travelling to be paid – so there is no entitlement to overtime payment.

The WTR provides for an average weekly working time limit of 48 hours per week, typically calculated over a reference period of 17 weeks. Unless the worker has opted out of this limit, employers have an obligation to take reasonable steps to ensure that this limit is observed and to keep and maintain records to show compliance with the limit over the previous two years. Breach of these obligations is a criminal offence. Case law under the WTR also establishes that workers who have not opted out have a contractual right to cease working if continuing to work would exceed the maximum hours permitted in any reference period.

Another key provision of the WTR is the entitlement to a daily rest period of 11 hours. In theory, this means that a mobile worker returning home at 8 pm could not be required to set off the next day before 7 am. However, this is an entitlement which workers can waive and employers do not have a strict obligation to enforce these rest periods. There is also scope under the WTR to require work on an ad hoc basis during a rest period as long as compensatory rest is offered later or to modify the entitlement to rest periods through a collective or workforce agreement on a more permanent basis.

Opt Out agreements

Opt-out agreements are the most straight forward way to deal with these obligations. They also remove the obligation to keep records of daily working time. However, workers do have the right to refuse to opt out or to opt back in on at least three months’ notice.

Unless your mobile workers sign an opt out Agreement, you would have to ensure that assignments are allocated so that the average weekly working time limits are not exceeded when travel time to and from home is factored in. You would also have to ensure that employees keep accurate records of start and finish times each day to enable compliance with the record keeping obligation and to allow you to keep track of how much working time is left in the reference period. Delays caused by significant travel disruption introduce another variable to be taken into account. With this variable, work scheduling and allocation could become more difficult.
For further information on your obligations under the Working Time Regulations, please do not hesitate to contact our Employment Team.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© Miller Rosenfalck LLP, February 2016