If you drive from your home to your office and then your office to your client, only the second trip counts as working time for the purposes of the EU Working Time Directive. But what if you don’t have an office and so drive straight from your home to your first customer and at the end of the day, straight home from your last? How much of that travelling counts as working time?
All of it, says the European Court of Justice in Tyco this week in a ruling which makes some sense on its specific facts but nonetheless contains more fudge than Cadbury’s.
The Spanish Courts referred the question to the ECJ because they were unable to determine for Working Time Directive purposes whether that travel was working time or a rest period, there being no middle ground between them in the Directive.
The travelling time between home and the first and last customers of the day contained elements of both, but on the premise that while travelling the employees were not at liberty to do what they wanted, it could not be a rest period and so by definition had to be working time. This is logical in a way but then we have to remember that the Working Time Directive is a health and safety measure. Compare driving straight from home to the first customer with going to that customer via the office, a route which must be presumed to be longer in both time and distance. The same is true at the end of the day – if you go home from your last customer only via the office, then you will be home later than if you had gone direct. However, on the ECJ’s argument, you would count the time out from and back to the workplace only, and not the first and last legs from and to home. As a result, the employee with a habitual workplace will have a longer working day in fact (i.e. notionally a greater risk to health and safety) but a shorter working day in law.
The ECJ made much of Tyco’s decision to scrap the regional offices to which its employees had previously reported daily before setting off on their travels. It was not fair, said the ECJ, that the employees should bear the burden in health and safety terms of that decision. In reality, however, that decision probably shortened the employees’ actual time away from home while its ruling increases the length of their legal working time.
In addition, there is scarily little to prevent the ECJ’s analysis of the nature of that travelling time being extended to cover commuting generally – after all, getting to the office is a necessary part of performing your duties there and no one in their right mind would describe commuting as a rest period. There does not seem any connection between protection of the health and safety of the employee (which the ECJ stressed was at the heart of its ruling) on the one hand and whether the employee has a habitual or fixed place of work on the other. Time travelling to or from work is time travelling to or from work in either case.
So there are certainly logical flaws in the ECJ’s decision, and obviously the case depends to some extent on its own facts. But what does it mean for employers generally in practical terms? Very much less than unions and shouty press headlines suggest:-
(i) the ECJ’s ruling only applies to those who have no habitual or fixed place of work – so if you do have such a workplace, your going on occasion direct from home to a client or back will not make that trip into working time.
(ii) it’s not about the money – working time is an EU health and safety construct, not a UK national minimum wage point. What is working time for one purpose is not necessarily so for the other. There is therefore no obligation on employers to pay for that additional working time as an extra sum.
(iii) the additional working time may place a very limited number of UK employers in breach of the Working Time Regulations’ average hours limits and/or the requirement for 11 hours’ daily rest. That will only be those whose workforce (a) does not have a fixed or habitual place of work; (b) travels direct between customers and home; (c) is already working so close to the average 48 hour weekly limit that this marginal extra time is enough to tip them over it; (d) has not signed a WTR opt-out; and (e) would ever think the point worth taking, especially given (ii) above. The vast majority of UK employers will be completely unaffected by this decision.