Frozen out: Can it be too cold to work?

Spring is here. Or is that winter? All over the country, people are facing difficulty travelling on account of snow and ice and, here on Merseyside, things are no different.

In fact, this is quickly turning into that time of year when I receive multiple text messages from friends, some more jokey than others, asking if there is a minimum temperature at which they are required to work because their workplace is so cold or, as my favourite text states: ‘so cold as to give a polar bear frostbite!

Now, poorly polar bears aside, there isn’t a set temperature at which staff can suddenly declare it to be too cold and go home without recourse. Even if there was, those staff would be highly unlikely to be paid during their absence from office.

Instead, businesses rely on guidance from the Health and Safety Executive (HSE). The HSE recommeds that office-based workers be exposed to temperatures no lower than 16C and any workers whose work requires ‘physical effort’ (i.e. being on your feet and moving arond) are not exposed to temperatures below 13C.

However, be very aware of that word above: ‘guidance‘.

The Santa Clause: Employment Law issues in Lapland

Penguin Santa You know who’s having a low media presence this year? Santa Claus! I mean, just look at the Christmas adverts this year! Without naming names, the ‘biggest’ Christmas adverts this year involve a monster, a carrot and a toy factory. The only ‘big’ advert that sees the big, red man is one in which Paddington bear mistakes a burglar for Santa!

So, why the low media presence? Where is Santa?

On that front, I may be able to help. You see, Mr Claus is currently having some Employment Law and HR issues with his workforce and has been busy obtaining legal advice on what to do next. It’s a stressful time of year, particularly with less and less people believing in him (there seems to be a rumour going around that he isn’t real) and certain big rival companies in the logistics business setting up in competition (the main one named after a geographical location considerably far away from Lapland).

Put simply, Christmas needs saving and Santa can’t operate without solving his current employment law issues. With this in mind, let’s go on a Christmas journey and help Santa save Christmas!

Does time taken travelling to and from work count as working time?

It has long been the case that time spent in travelling to and from work does not form part of the working time of employees. Occasionally, specific issues have been considered, such as when an employer relocates, but the main principle has not altered.

However the European Court of Justice has now had its say in the case of Federación de Servicios Privados del sindicato Comisiones Obreras. This case, on referral from the Spanish national court, concerned workers who were required to travel to different locations to work. The Advocate General described them as “peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work [and] spend time travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes”.

It was noted that, under Spanish law, working hours should not exceed 40 hours of “actual work” per week, calculated on an annual basis. There has to be at least 12 hours between the end of one working day and the beginning of another and  normal working hours should not exceed nine per day.

The employees concerned were technicians who worked for security system installation and maintenance services. They were allocated to areas and they used company vehicles to travel to homes and industrial and commercial premises where they were required to carry out work. Unsurprisingly the distances from a worker’s home to the first workplace varied considerably and were sometimes more than 100 km. They were also required to travel at least once a week to the offices of a transport logistics company to collect parts. Their place of work each day was notified to them by messages sent to company issued Blackberrys provided to each of them.

For the purpose of calculating working time the employer did not include time spent on the first journey of the day, from home to work, and the last journey of the day, from work to home. Instead, time was calculated with reference to the time of arrival at the first job and the time of departure from the last job.

In the view of the national court this arrangement meant that workers could not adjust their private life and their place of residence for the purpose of proximity to the place of work. Travelling time could not therefore be regarded as rest time, having regard also to health and safety issues. Equally it was not time that the worker was at the employer’s disposal so that he could be assigned to other work. It was therefore not clear whether this was working time or a rest period, hence the referral to the European Court.