Commuting on the job: For mobile workers, travelling to and from work is now “working time.” The Issue
Employment E-alert September 2015
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The European Court of Justice (ECJ) has decided that time spent by mobile workers (those who have no fixed workplace) travelling from their home to their first customer and from their last customer back home counts as working time under the EU Working Time Directive. The Court decided:
Commuting time was a necessary means of providing their services to customers Mobile workers are at the business’ disposal during commuting time since the employer allocates the customer visit appointment times.
The Consequences Working hours for mobile workers: The decision does affect how maximum weekly working hours and rest break entitlements are calculated for mobile workers (for example sales people, carers on client home visits, engineers/maintenance workers, delivery drivers etc.) particularly those who live outside their territory or in a remote location. This worked travelling time will reduce the on the job maximum working hours available under the Working Time Regulations. Resourcing may be impacted. Pay for mobile workers: The decision may affect pay. The ECJ said this decision does not give businesses a statutory obligation to pay staff for the worked commuting time. However, for hourly paid mobile workers who work, or are paid overtime, it may count as additional paid working time under their contract. Working hours and pay for fixed workplace workers: The decision does not affect how commuting hours are treated for their working time or their pay.
Carolyn Brown Partner, Head of Employment T: +44 (0)20 3755 5390 E: carolyn.brown@howardkennedy.com
Guidance for businesses to manage mobile workers with no fixed workplace Businesses employing mobile workers:
Can consider reassigning mobile workers to a fixed base they travel to before commencing work and leave last before going home and so remove their classification as mobile workers Can arrange mobile workers’ first and last assignments close to home to limit travelling working time Should institute monitoring of travelling working time to ensure working time regulation compliance and so manage commuting “working time"
Working time guidance:
If the additional travelling working time might take mobile workers over the maximum weekly working time (48 hours prescribed by the Working Time Regulations), ensure the worker has given a written opt-out of this Regulation. If they refuse, reduce their active working hours to avoid any working time breach by the business Check all mobile workers can take at least 11 hours' rest between getting home at night and setting off again next morning.
Pay guidance:
Check contracts of hourly paid mobile workers and/or those with overtime arrangements and obtain advice on whether they are entitled to pay for the additional travelling working time Consider whether the business will pay for the additional travelling working time of mobile workers If businesses have no current obligation to pay for the additional working time, expect pressure from staff to negotiate or claim pay for this travelling worked time (such as breach of contract claims from those paid hourly or with paid overtime) National Minimum Wage Regulations in the UK say that time travelling to/from work is not included when calculating the national minimum wage. Take advice on the impact for mobile workers now.
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