Travelling time: work, rest or play?

The European Court of Justice has made a number of rulings over the years which affect the interpretation of the Working Time Regulations. This latest decision concluded that mobile engineers with no fixed place of work should be treated as working for the purposes of the Working Time Directive while driving between home and customers’ premises. The ECJ expressly pointed out that it was not making a ruling about how they should be paid for this time.

In the UK the treatment of travelling time is subject to two overlapping sets of provisions. The Working Time Regulations (underpinned by an EU Directive) govern rest breaks, the maximum working week and minimum paid holiday entitlement while the National Minimum Wage Regulations (purely domestic) stipulate a minimum hourly rate of pay. Subject to these provisions, employers are free to agree whatever arrangements they wish with their workforce with regard to travelling time.

Impact in the UK: working time

This latest ECJ decision will dictate how our domestic courts interpret the Working Time Regulations, particularly because they do not include their own definition of working time. As a result time spent by mobile workers travelling from home to their first assignment of the day, and back home from the last, must be treated as working time if they have no fixed place of work. That will have an impact on the way their maximum working week of 48 hours is calculated, as well as the timing of rest breaks. This decision does not apply to mobile workers who have to report to a base each day before starting work – for example to pick up their vehicle.

Impact in the UK: wages

The National Minimum Wage Regulations make detailed provision for how travelling time is to be treated. That depends on a number of factors, not least the kind of contract the worker has. However if the worker is paid a salary or by the hour, travelling time does not need to be paid where the travel is between home and work, or a place where a work assignment is carried out. So had the Spanish engineers been working in Britain, they would not have been entitled to the National Minimum Wage for the time spent travelling on the first and last journeys of the day, though they would have been entitled to be paid for journeys between customers.

However, the National Minimum Wage Regulations simply set a minimum entitlement and can be over-written by more favourable provisions in the worker’s contract of employment. It is therefore possible that contractual provisions on travelling time (included those incorporated from a collective agreement) many now be interpreted in a different light following the ECJ’s decision. Certainly that is what the unions have been arguing.

Conclusions

This latest ECJ decision will have a direct impact about the way employers calculate entitlement to breaks and the maximum working week. If mobile workers’ travelling has been wrongly excluded, these calculations will need to be adjusted. In some cases it may be necessary to ask workers to sign opt-outs from the maximum average working week of 48 hours.

The decision will also have an indirect impact if a working time style definition has been adopted in order to calculate entitlement to basic pay, or to calculate overtime thresholds. If employers have significant numbers of mobile workers without a fixed work base they would be wise to re-visit their contractual arrangements. However, this decision falls well short of saying that workers need to be paid for all travelling time – though this would clearly be a popular move!