Hot off the Press - When travel times becomes work time

Hot off the Press - When travel times becomes work time


  • Date: Monday 13th July 2015

Background

Following the new guidance on overtime to be included when calculating holiday payments, another European ruling has hit the headlines as it may have a major impact on our employment practices.

 

Travel time has always been a contentious issue, often leaving employers unsure whether or not it constitutes work time. The Working Time Regulations 1998 give no clear definition on what should be considered as travel during working hours, i.e. business travel, and what can be seen as travel in personal time, i.e. rest time.

 

Government guidance suggests that 'time spent travelling for workers who have to travel as part of their job e.g. travelling sales reps or 24 hour plumbers' is included in working time, but that 'normal travel to and from work', and 'travelling outside of normal working hours', is not.

 

The impact of this mainly relates to insurance, and areas of responsibility in terms of safety, since employers have a duty of care for employees travelling on business. Risk assessments should be conducted, a driving policy implemented and employees have to be inducted and trained on the use of company vehicles. If they use their own cars, employees should be advised of maintenance requirements and the need for safety checks, making sure that private vehicles are safe and fit for purpose.

 

From a HR perspective, one should assume that travelling on business constitutes work time and should therefore be paid. This may also make a difference to the holiday hours employees are eligible for if the journey is regularly lengthy and employees are paid per hour or receive overtime.

 

The Case

Tyco Integrated Security SL are a security systems installation and maintenance company based in Spain who employ around 75 field based technicians. All technicians use company vehicles to travel to their assigned sites which change frequently and can be as far away from home as 80 miles.

 

The company did not regard the first and last journey of the day as travel on work time and therefore only calculated work days as starting from the arrival of the technician on site, until the moment they leave. Employees complained and the courts agreed in principle on the basis that, because the employees did not have the option to move closer to their client sites (because they frequently changed), they were seen to be at the peril of the employer, and therefore travel time should be reimbursed. However, the definition of working time includes the need for the employees to be ‘at the organisation’s disposal’ and arguably and employee is not technically speaking at their employers’ disposal when travelling.

 

The Spanish courts referred the case to the European Court of Justice and the Advocate General’s opinion was that, since travelling was inherent in the performance of the employees’ duties, it should be classed as non-rest time. Peripatetic workers such as sales people and mobile technicians can in his opinion be seen to be at the disposal of their employer during any journey conducted on business, hence the support of the claim.

 

Impact

What this essentially means is that when the employer dictates where to and when an employee has to travel the travel time should be seen as business travel, not private, even if it is the first or last journey of the day.

 

The Advocate General’s opinion is not binding for the European Court of Justice but usually national courts and tribunals, as well as the ECJ follow his opinion. Very little case-law exists in the UK at present so how this new ruling will be applied in practice remains to be seen.

 

However, any employers operating in a similar environment are advised to review their policies and practices. If you require any support or guidance on this subject, please do not hesitate to give our HR advisory service a call.

 

 


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