Employers with large cohorts of itinerant workers need to take note of a Court of Justice of the European Union (CJEU) ruling that the time taken by remotely instructed itinerant workers travelling from home to the first client designated by the employer and from the last client to home is 'working time'.
The journeys made by workers without a fixed or habitual place of work between their homes and the first and last customer of the day constitute working time.
Under the Working Time Regulations 1998 (WTR) and underlying Working Time Directive (WTD), travel time to and from work is not counted as working hours, but travel which is part of the employee's duties is counted as working time.
It has long been understood that travelling to and from home to an assigned depot or booking-on point, does not count as 'working time' for itinerant workers. How does the rise of mobile employer apps for giving the day's appointment list change things?
Employers with large cohorts of itinerant workers, such as salespeople, mobile engineers or home carers need to take note of the judgment of the CJEU in Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL (Tyco).
The CJEU has now ruled that the time taken by remotely instructed itinerant workers travelling from home to the first client designated by the employer and from the last client to home is 'working time'.
This ruling has direct implications for the calculation of the working week, rest breaks and daily rest periods of such workers. Employers may see margins squeezed as the number of appointments a worker can make in a day/week are affected.
While the WTD does not cover remuneration, save for holiday pay, this ruling nevertheless may fuel a debate concerning what counts as hours 'worked' under the National Minimum Wage (NMW) legislation.
What happened in this case?
The Spanish case concerns security system technicians. Following the closure of all of the employer's regional offices/depots, all technicians were provided with mobile phones to receive their instructions and submit their reports. A technician's first and last appointments could be anywhere between a few kilometres to over a hundred kilometres from their home.
Upon moving to the remote instructions system, the employer calculated the working day on the basis of the time elapsing between the worker's arrival at the premises of the first customer of the day and the time that worker leaves the premises of the last customer, the only journeys taken into account being the journeys between customers. The workers claimed this breached their right to 11 consecutive hours' rest in each 24-hour period under the Directive.
The CJEU has sided with the workers and ruled that the journeys made by such workers between their homes and the first and last customer of the day did indeed constitute working time. In particular it concluded:
- Journeys of workers to the customers their employer designates is a necessary means of providing their technical services at the premises of those customers.
- The workers are at the employer's disposal for the time of the journeys. It is the employer who determines the list and order of the clients. During the journey time, the workers are not able to use their time freely.
- During those journeys, the workers act on the instructions of the employer, who may change the order of the customers or cancel or add an appointment. It is for the employer to put in place procedures to avoid any potential abuse.
- For workers who must travel to clients in order to carry out their work, the travel itself forms part of the work; being at a workplace cannot be reduced to a physical presence at a location, hence when travelling, workers are 'at work'.
A change in the law?
No not really, rather this case highlights how the rise of mobile employer's apps for giving the day's appointment list changes things. Had the employer in this case continued to operate regional depots, it would have remained the case that travel from the worker's home to and from the depot would not constitute 'working time'. It would also have remained the case that travel time to and from clients and the depot was 'working time'.
Essentially, what changed is that the employer in effect swapped the old style depot for a modern mobile app. As under the old system, 'working time' commenced and finished where the worker received their day's appointment's list.
What does this mean for employers?
Where travel is an integral part of the job, all journeys to clients count as 'working time'. This has important implications for employers employing such workers.
1. WTR implications
a) Working week
The WTR limit a worker's average weekly working hours to 48, unless the worker has signed a valid op-out agreement for falls within one of the limited exemptions. Employers utilising itinerant workers should ensure they have requisite opt out agreements in place or comply with the 48 average hour working week limit.
b) Rest breaks
Perhaps more significantly, the CJEU ruling impacts the number of visits each worker can make in a day. Under the WTR, subject to certain exceptions, a worker is entitled to a 20 minute unpaid rest break after six hours and a daily rest period of at least 11 consecutive hours in each 24 hour period. While workers can formally opt-out of the 48 hour working week limitation, it is not possible to opt-out of rest breaks, although they may be varied by a collective or workforce agreement. Workers can voluntarily forego a rest break, but employers who refuse to allow the daily rest break for workers wishing to take it (or compensatory rest for those falling under the 'special cases' or shift working exemptions), will be in breach of the WTR.
Fewer appointments per day and week mean fewer fees and tighter margins for employers.
Employers who breach the regulations may face tribunal claims by individual workers. Where an employer is found to be in breach, the tribunal must make a declaration to that effect and may make an award of such compensation as is just and equitable in all the circumstances, having regard to the employer's default and any loss sustained by the worker as a result. As rest breaks are unpaid such a claim for failure to allow a rest break may be of limited monetary value.
Perhaps more significant is potential enforcement action by the Health and Safety Executive, often with resultant publicity. "Improvement" or "prohibition" notices can be issued by HSE or local authority inspectors. Failure to comply with a notice runs the risk of fines (which, with the publication of new guidelines are expected to significantly increase from early 2016) and, in severe cases, potentially up to two years' imprisonment for directors.
2. NMW implications
As for remuneration during the travel time, the CJEU simply avoids the question on the basis that the method of remunerating workers in situations such as these is not covered by the WTD. Instead it would be up to the provision of national law.
The CJEU's ruling is confined to the context of determining "working time" for the purposes of the WTD only. As the NMW legislation is purely a piece of UK legislation, the CJEU ruling does not have any direct impact in this regard, but...
In the UK, under the National Minimum Wage Regulations 2015 for both salaried (reg 27) and time work (reg 34) workers:
travel time between the worker's residence and "a place of work or a place where an assignment is carried out" is not counted as 'worked'; but
"hours when the worker is travelling for the purpose of carrying out assignments to be carried out at different places between which the worker is obliged to travel, and which are not places occupied by the employer" are treated as 'worked'.
For workers who receive their instructions via a mobile app, does the travel to the first in a series of appointments throughout the day and return from the final appointment fall within (a) or (b) above?
In the context of the WTR, the CJEU finds that "given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the physical areas of their work on the premises of their employer's customers". In other words the travel itself forms part of the 'the work' or in the words of the NMW legislation 'carrying out assignments'.
While the case is not directly applicable to the NMW legislation, nevertheless, this case may fuel fresh claims as to the meaning of regulations 27 and 34 for modern mobile workforces, who do not have a base office/depot.