Tayside employers are advised that commuting may be treated as working time

The opinion of the Advocate General in the Court of Justice of the European Union (CJEU) in a recent case could have far reaching consequences for employers.  He recommended that travel time to and from work for peripatetic workers (those not assigned to a fixed or habitual place of work) may be treated as “working time”.

Two security system companies referred the matter of whether their employees travel time should be counted as working time to the Advocate General who found that for peripatetic workers, it can be.

The companies install and maintain intruder detection systems and anti-theft systems in homes and commercial premises within assigned geographical areas.  The issue was whether the time their employees spent each day, travelling from home to their first customer and from their last customer to their homes, should amount to working time.  The employees did not have a base from which to leave or return to, for their first and last visits.

The Working Time Directive is enacted in the UK by the Working Time Regulations 1998 (WTR).  WTR describe various factors to be included when determining whether or not employees are ‘working’, such as business lunches and travelling to incidents whilst on call.  Commuting to and from work is not normally included, unless the travel is undertaken following \"booking on\" or reporting to an assigned depot or booking-on point.

In this case, the Advocate General focused on the aim of the directive which is – safeguarding the health and safety of workers by ensuring minimum rest periods and maximum average weekly hours. The three aspects which determine \'working time\' are: being (1) at the workplace; (2) at the disposal of the employer; and (3) engaged in work duties.

The Advocate General saw no distinction between travel between jobs, which was agreed to be working time, and, in these circumstances, to and from the first and last jobs, which was not.  Further, since working time and rest time are mutually exclusive concepts, rest time must not involve obligations to the employer.  Therefore, the travel time in this case had to be working time.

Although recommendations such as this are not binding, it is likely to be followed by the European Court of Justice and will therefore inform UK Tribunals on the approach to be taken on this point in the future.  The full implications will be clearer when the CJEU decision is delivered later this year.

In the meantime, it is worth employers across Tayside considering any potential impact on their working practices and if appropriate, designating a ‘booking in’ point for all employees, before they set off on their various visits which would clarify the issue.

To contact: Kate Wyatt