By Lois Madden, Trainee Solicitor

Is time spent travelling to work"working time"? The Advocate General (AG) of the European Court of Justice (ECJ) has recently provided an Opinion that, for certain types of employees, it is.

In the Spanish case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, the employees were technicians of a security systems company. Their role involved travelling between customers' homes in a company vehicle. The travel time between jobs was considered"working time" for the purposes of the EU Working Time Directive (No.2003/88). However, their employer did not treat the initial journey to the first job of the day as working time, nor the journey home at the end of the day. The employees, through their union, brought a claim that such time should have been treated as working time and the Spanish courts then referred this to the ECJ. The AG has provided an Opinion on the case before it proceeds to a full hearing of the ECJ in the next few months.

The AG labelled the employees as"peripatetic" which describes those who do not have a fixed place of work. He examined the definition of working time in the EU legislation which is broken down into three key requirements:

  1. Workers must be at the workplace.
  2. Workers must be at the disposal of the employer.
  3. Workers must be carrying out their activity or duties.

As the technicians did not have a fixed workplace the AG gave the view that there was no distinction between the scenario of a worker who leaves the office to carry out a work activity, and a peripatetic worker who leaves from their home to carry out a work activity – meeting the first requirement. This tied in with the facts of this case as prior to a business change, the technicians had begun their working day at their employer's depot before driving to their first appointment. The employees' routes and destinations were determined by the employer; consequently the first and last journeys of the day still involved the worker being available to the employer and performing their duty – meeting the second and third requirements.

The UK Working Time Regulations 1998 follows the working time definition provided in the Directive with the additional inclusion of time spent in training. If this Opinion is to be followed by the ECJ, a direct impact in the UK would ensue, particularly for employers of employees without a fixed place of work. Employers in general may also have to be wary about mobility clauses in their employment contracts. Creating an obligation on an employee to work from an alternative location at the employer's demand could potentially open up an argument that the employee is a peripatetic worker and any long commute to an alternative location may be classed as working time.

For commuting employees who may have hopes that this potential change in the law would bring them some benefit, the status quo remains that time spent travelling to and from a fixed place of work is not understood as working time. Such travelling hours will not result in an employee accruing hours of work, holiday entitlement or any additional employment rights.

The AG Opinion is not binding on the Court but such opinions are considered to be highly persuasive. The definitive outcome of this case at the full hearing will be highly anticipated by employees and employers alike.

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