A recent decision by Europe’s highest Court (the ECJ) ruled that, for those workers with no fixed/habitual place of work, time spent travelling between home and their first and last job each day, counts as “working time”.
This does not mean, however, that they are automatically entitled to more pay!
This decision does have implications for any employers with mobile/peripatetic workers e.g. care workers, field engineers and field sales workers. However, the immediate impact is not as dramatic as some may have you believe.
What is the immediate impact of the decision?
The decision itself (which involved Tyco Integrated Security in Spain) relates to “Working Time”. It means that time spent travelling from home to a first job and then back from the last job to home is classed as ‘working time’ for the purpose of the Working Time Regulations.
This impacts on how working time is organised in terms of:
- average weekly working time;
- rest periods and breaks;
- minimum periods of paid holiday.
This decision has no direct impact on pay. The Working Time Regulations do not require working time to be paid. Pay is governed by the National Minimum Wage legislation in the UK (which will become the National Living Wage from April 2016)
Current legislation and case law in relation to pay states that “travel time is excluded from the National Minimum Wage”.
One exception is workers who do “unmeasured work”. The definition of unmeasured work is outside of the scope of this note, suffice to say this exception does not apply to typical mobile workers. Consequently, they fall within the rule that travel time is excluded from the remit of the National Minimum Wage.
In short, therefore, travel time for mobile workers is currently unpaid. This will remain the case unless and until there is a change in the law regarding the National Minimum Wage.
N.B. If your contracts stipulate a worker will be paid for “all hours of work” – there could now be a contractual argument to be paid for travel time; and
Another potential argument is that travel time uses up “normal hours” therefore overtime rates may be triggered earlier.
We shall wait and see whether these arguments are pursued.
What action is required now?
Undertake an audit
- Do your current working patterns comply with the rules in the Working Time Regulations?
- Maximum of 48 working hours per week? (Unless, the employee has signed an opt out)
- Daily rest of 11 continuous hours in every 24 hour period
- Weekly rest of:
- no less than 24 continuous hours in a 7 day period; or
- no less than 48 continuous hours in a 14 day period
- Daily rest break of no less than 20 minutes after 6 working hours
** Please note, the rest periods are more generous for young workers.
Do note, however, someone will challenge the position regarding pay. There is already a case in Tribunal on a similar, albeit not the exact, point. Rest assured, therefore, the Unions will fuel the argument at some point and we believe they will succeed! On a practical level, therefore, review your business model to determine whether and how best to accommodate the position if this ‘working time’ has to be paid?
A second audit would be prudent, to determine:
- How much travel time is completed at start/end of day/ per employee
- Can you reorganise job schedules to reduce this to a minimum?
- What would be the impact for your business if this had to be paid at no less than National Minimum Wage rates?
And then…..we believe you will have to pay for the time at some point. The question is, from when? In the meantime, and from a cashflow perspective, you may wish to plan for this (and a potential backdating of any pay to September 2015).