Is all travelling time working time?

Employers still grappling with European case law developments on the calculation of holiday pay can breathe a sigh of relief. The latest working time decision from the European Court of Justice, about time spent by Spanish field-based employees travelling, does not have such far reaching consequences.

Largely following the earlier opinion of the Advocate General, the ECJ made a preliminary ruling as to whether, for the purposes of the Working Time Directive, 75 field based technicians working in Spain were deemed to be working while travelling.

Heavily influenced by the fact that the first and last journeys of the day to and from customers had previously been regarded as working time when the workers were office based, the ECJ ruled that the technicians were working during these journeys. The ECJ held a worker must be regarded as working provided:

• The worker is “at work” – here the fact that travel to a customer was a necessary means of delivering a service to that customer meant the journey was “work”.
• The worker is at the employer’s disposal - that during journeys, the worker acts on the instructions of the employer, who could change or add appointments.
• The worker is carrying out their normal duties – which for a peripatetic employee includes travelling to customers.

As a consequence, workers caught by this decision are entitled to have time spent travelling to and from their first and last customers taken into account when assessing their entitlement to daily and weekly rest breaks and for the purposes of assessing if they have worked in excess of the maximum weekly working hours (48).

The reporting of this decision in the press could easily have led a reader to believe this decision has wide implications: certainly the unions are making the most of the case to press for all travelling time to be paid for home-based workers. However we think in strict legal terms it has a fairly limited impact for the following reasons:

• It applies to a narrow category of workers – ie, peripatetic workers with no fixed or habitual place of work.
• It does not affect pay. The ECJ ruling states explicitly that the decision is not about pay for time spent working, but about ensuring the measures implemented by the Working Time Directive to protect health and safety (in terms of capping working hours and introducing rest breaks) are effective.
• There are a variety of exceptions in the UK which vary a worker’s rights derived from the Working Time Directive, most significantly the right to opt out of the maximum weekly working hours.
• In the UK any right to pay for hours spent travelling is set out in the worker’s contract of employment. The National Minimum Wage Regulations stipulate minimum rates for each hour of work, but in most circumstances travel from home to the first customer and from the last customer back home is excluded.