The recent Spanish case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (C-266/14) which was referred to the European Court of Justice (ECJ) raised the issue of whether peripatetic workers (workers with no fixed workplace) should have their time spent travelling to their first job of the day and also back home from their last job counted as working time for the purposes of the Working Time Directive (the Directive).
Facts of the Case
The facts of the case relate to two security system installation and maintenance companies who employed technicians across Spain who were all assigned to the central branch in Madrid but were based all across the country and responsible for their respective regions. Each technician was provided with a company vehicle to use for travel to and between jobs. The companies did not regard the time spent travelling from the employees home to the first assignment of the day or the time taken to get from the last job of the day back home as “working time”, rather deeming it as “rest” (the Directive gives no intermediate position so the time must fall into one of these categories). The employees argued that this was not the correct stance as they would sometimes have distances of up to 100km to travel and this should merit payment.
Advocate General’s Opinion
As a result of this the Spanish Courts sought clarification from the ECJ as to whether this type of commuting constituted “working time”. In the Advocate General’s (AG) opinion it should. This is not a binding judgment and the official decision will likely not be made for a number of months but the AG’s guidance is often followed by the ECJ.
The AG reasoned what should be considered “working time” by reference to a tripartite test .
The three criteria are:
- To be at the workplace
- To be at the disposal of the employer
- To be carrying out work activity or duties
The AG begins his explanation with the third of these criteria. The fact that these workers have no habitual place of work and instead are required to be at numerous different premises each day inherently means that travel is an integral part of them carrying out their work activities. From this it follows, the AG argues, that the first criterion is also met. If travel is such a key part of these workers activities then the workplace cannot be reduced to the employee’s presence in the premises of a customer and travel to and from the premises of these customers designated by the employer should be considered the “workplace”. The issue the Spanish Courts seem to have had trouble with is determining whether at the times discussed above the employee is at the disposal of the employer. This test poses the question of whether the worker is legally obliged to obey the instructions of their employer to carry out their activities for the benefit of that employer. Since the journeys and distances travelled depend exclusively on the employer’s wishes, the travelling, including the first and last journeys of the day, can be seen to be done in the context of the hierarchical employer-employee relationship. As such it is argued by the AG that it is not only at the job site that peripatetic workers are at the disposal of their employers and the third criterion for “working time” is met.
The Working Time Directive was implemented into UK law by the Working Time Regulations 1998. These regulations provide their own guidelines as to what constitutes “working” and commuting to and from work is normally not included but should the ECJ follow the advice of the Advocate General then this will be binding on UK courts.
Another thing that may be important to note, however, is the National Minimum Wage (NMW) Regulations. These do not derive from EU law so while the time spent travelling to and from work at the start and end of the day by peripatetic workers may be considered working time under the Directive, it may not be categorised as such under the NMW regulations. In fact in the draft 2015 regulations, reg 34(1) expressly provides that travel between the worker’s home and “a place where an assignment is carried out” will not constitute work time. As such affected workers may face a further fight to be paid at least the minimum wage for these hours.
If you need advice or have any questions please contact firstname.lastname@example.org or by phoning 0141-552-3422