traffic_jamIt 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.

Bearing in mind that the European Court has repeatedly stated that “working time” means (logically) any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, such times cannot constitute rest periods. There is no grey area: workers are working or resting. The Advocate General noted that “working time” has three essential characteristics, (i) to be at the workplace, (ii) to be at the disposal of the employer and (iii) to be carrying out duties. In his view all three criteria were met when travelling to the first appointment and from the last appointment. He therefore proposed that the European Court should reply to the national court as follows:

Point (1) of Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that, in circumstances such as those in the main proceedings, the time that peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work, spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes ‘working time’, within the meaning of that provision

Although this is the Opinion of the of the Advocate General, as I have mentioned on many occasions, such opinions are almost invariably followed by the Court. Along with the recent decisions concerning the calculation of holiday pay, the ramifications for businesses with employees “on the road” are enormous not, least because, in my experience, no such employers treat such time as working time. It is likely that contracts will need to be amended and, of course, hours worked as well as the calculation of pay and benefits. It might be tempting for some employers to consider using self-employed contractors. However, in that regard, it should be borne in mind that the Working Time Regulations apply not just to employees but also the much wider category of “workers”. Although not yet widely reported I can see this being one of the big employment issues of 2015.