On the clock – travelling to and from work

Earlier this year the Advocate General recommended that travel time to the first customer and from the last customer is to be considered “working time” for mobile workers. The Court of Justice of the European Union (“CJEU”) has now brought this non-binding recommendation into law.

(Click here for those who would like to refresh their memories on the Attorney General’s opinion)

In a recent case the CJEU ruled:

“Where workers, such as those in the situation at issue, do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the [working time]directive.”

The decision was made with a view to safeguarding the health and safety of workers as required by the Working Time Directive 2003 (“WTD”). It is also noteworthy that the CJEU was very clear on:

“The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves.”

That is, the workers should not be subject to detrimental treatment and/or breaches of the WTD because of something that the employer has decided. However, it appears unclear what the position would be if, for example, the mobile worker decides to move further away resulting in an equally detrimental situation.

The decision created quite a media flurry at the end of last week and the predictions are largely unanimous: the impact on companies that use mobile workers, for instance; sales reps, care workers or call-out service engineers will not go unnoticed. The decision could potentially have a significant negative impact on businesses that operate or supply in affected sectors who will have to reconsider costings and margins and potentially also require workers signing 48-hour working week waivers in accordance with the WTD. Inevitably when the courts address this issue it will lead to an interplay between domestic and EU legislation.

Any concerns about National Minimum wage not being paid to mobile workers may appear to be irrelevant. The entitlement to National Minimum Wage under National Minimum Wage Regulations 2015 (“NMWR”) is a UK right. There is no such thing as an EU right to minimum wage. The NMWR does not count work travel from home or to any workplace. Mobile workers on National Minimum Wage are unlikely to be able to claim any additional sums under the NMWR, however if a day rate is paid the indesicion of additional travel hours may mean the rate has to be increased.

A more pressing day-to-day concern that is likely to lead to workplace disputes is what the mobile worker does during this travel time. Stopping by a post box to mail a letter should perhaps be accommodated, but doing your weekly grocery shop or stopping to get your hair cut may be going too far? As always, we recommend having robust guidelines and/or policies in place so that mobile workers are aware of what is and what is not acceptable conduct during travel time which will ultimately avoid, or at least reduce, workplace disputes. A policy encouraging mobile workers to schedule the first and last appointments as close as possible to their home may also be advisable.