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Travel from home straight to a customer? The rules have changed.

The European Court of Justice (ECJ) decided in September 2015 that travel time counts as working time. This applies when a worker does not have a fixed place of work but is required to travel from home at the beginning of the day to the premises of one his customers, and to return home from the premises of another existing customer – following a list or route that the employer has determined for the worker.


Privados del Sindicato Comisiones Obreras v Tyco Integrated Security was a case about Spanish workers who installed and maintained burglar alarms for their employer Tyco.


In 2011 Tyco shut down their regional offices and attached all employees to a central Madrid office, resulting in employees having to travel various distances – up to 3 hours – from home before arriving at their first appointment. The employees argued that their working time should start from the time they left home, while Tyco argued that their working time should start when they reached their first customer. The Spanish Courts asked the ECJ to consider the case.


In July 2015 the ECJ’s Advocate General gave his opinion that for employees with no fixed workplace, their time spent travelling from home to the first customer and from the last customer back home counted as “working time”.


The ECJ agreed in September, saying that the fact staff began and ended their journey at home did not come “from the desire of the workers” and so they should not be forced to “bear the burden of their employer’s choice to close these offices”.


UK lawyers got involved in the ECJ case, asking the ECJ to consider the costs to businesses, especially where travelling time as work could be abused by dishonest employees to carry out personal business. The ECJ said it was up to companies to prevent that by implementing monitoring systems, e.g. tracking petrol costs and mileage.


What does this mean?


This will impact the UK and all across Europe. It does not necessarily affect pay – this is only about hours of work.


Although some reports of this ruling in the UK press made it sound like all staff had to be paid from the moment they leave home, this is not the case. It will only affect those staff who are not required to enter a regular or fixed place of work at the start of their day/shift but go straight to a customer/client – e.g. some care workers, salesmen, utility engineers, maintenance workers, some delivery drivers, and so on – whether employees, workers or agency staff.


However, it is not yet clear if this will only apply to mobile workers in a similar situation – i.e. subject to the closure of regional/local offices, or if it will apply to all mobile workers, for example those who have always made their first and last journey to/from customers’ premises.


It’s certain that employers will need to look at their contracts and conditions for staff – in terms of hours worked, breaks, Opt-Out clauses, how work is scheduled and by whom, place of work and conditions and perhaps ultimately wages.


Whether the company controls the time spent between home and the first customer because it tightly schedules the appointments for the employee, or the employee has the flexibility to manage the itinerary will be key in deciding if this decision affects your staff.


It will not affect the self-employed/contactors. One estimate of the impact to the UK is that just under a million workers could be affected by the judgement. The ECJ ruling said:


Where workers, such as those in the situation at issue, do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the [Working Time] directive.


It added that the workers were “at the employer’s disposal” during the journey because they acted under their employer’s instruction and could not use that time freely to pursue their own interests.


The ruling impacts on mobile workers because Working Time legislation states that you cannot work for more than 48 hours per week, which is normally measured over a 17 week ‘reference period’ rather than counted on a week-by-week basis.


If staff currently work nearly 48 hours per week and then if their travel time is to be included when calculating their ‘working’ time they may exceed working 48 hours per week.


The anti-Europe lobby has of course criticised the verdict as “tormenting” businesses. Previously, David Cameron was supposedly trying to negotiate a full opt-out from European legislation such as the Working Time Regulations, but many believe his ambitions will be watered down.


 


What are the problems with this and what are the solutions?


The Opt-Out


Employers can ask workers to voluntarily sign an opt-out of this 48 hour limit which is legally valid – i.e. workers agree that they will work for more than 48 hours per week – if they have not already done so.

However, the opt-out cannot be a condition of a workers employment (they are only employed if they sign it) and it must remain optional and voluntary. Therefore if a worker signed their contract with an opt-out in place they still have the legal right to opt back in to the 48 hour limit at a later date. The worker has to give their employer a minimum of 7 days written notice by law to do this. However, many employment contracts require a longer time scale to opt back in, often 3 months, as this is allowed.


Other Information on Opt-Out’s:


Young workers cannot opt-out.


Employees should not be subjected to any detriment by refusing or proposing to refuse to sign an opt-out agreement. If an employee was dismissed because they refused to sign an opt-out clause then this could be seen as automatically unfair dismissal (which they do not need 2 years service to claim).


The number of hours employees work per week can be averaged by an employer over the applicable 17/26 reference week period, rather than measured in one week. However with the daily and weekly rest breaks and the opt-out above included, the maximum in any week an employee should work is 78 hours.


If a worker agrees to opt-out voluntarily, this may solve any problems caused by the ruling – as long as their working hours are accurately recorded over the applicable ‘reference’ period.


Breaches of the 48-hour limit are dealt with by the Health and Safety Executive (i.e. a prosecution and/or a fine for the Employer, but not compensation for the worker).


More information on what else is and isn’t included when calculating the ‘working week’ is available here.




Rest Breaks


Including travel time may leave workers without an 11 hour rest break between shifts, which they are entitled to under Working Time legislation (unless they work in an industry that is exempt from the need for these rest breaks – see details here), which may drive up costs to accommodate/cover work during the rest periods.




Creating a Fixed Place of Work


Employers could ask staff to attend an office/fixed place of work first (to collect their van, for example, and again at the end of the day), but this could extend the working week beyond 48 hours too.


It is not clear whether this ruling also applies where an employer has several offices or locations and a worker is not allocated to any of them, but visits many of them separately on their first/last journey. This may be seen as ‘normal’ commute time.


Some businesses may react by reducing workers hours to avoid them working over 48 hours. This may lead to increased costs of recruiting extra workers.


Businesses may be able to schedule the first and last appointments closer to a workers home to avoid large chunks of time being classed as working time.




Ignoring the Ruling


Some employers may just risk their staff working more than 48 hours per week (without a valid opt-out) as the ‘risk’ of staff bringing claims as their employer is in breach of the WTR may be small.




Affect on Pay


This ruling does not mean staff will get paid more for their overall time – it’s all about health and safety. Trade Unions are now demanding that workers get paid for this travelling time and it’s obvious workers will demand more pay, but employers may not need to agree to this.


If workers are entitled to overtime this may be an issue, so check what your contracts actually say.


The UK’s National Minimum Wage legislation is a UK law and is not imposed by Europe, as there is no European right to a national minimum wage.


The NMW says that workers must be paid at least the NMW for all the hours they work. However, the legislation currently says that travel time to work or, to a customers premises, at the beginning and the end of the day does NOT count as ‘time work’ and so is not included in the NMW calculation.


Watch this space for future developments as the NMW and WTR laws often interact with each other (and are confused with each other) and there may be pressure on NMW legislation to change in future.


Thera East v Valentine


In December 2017 the Employment Appeal Tribunal considered whether workers who fell under the Tyco principle were entitled to be paid for their first and last journeys of the day, in Thera East v Valentine. Valentine worked for a charity as a support worker assisting disabled people in the community driving his own car for work. In his contract he was paid on annualised hours basis and travel from his home to his first assignment, and then from his last assignment to home each day were not included in these hours; the contract also said that any hours worked in excess of the annualised hours were given back as time off in lieu.


Following the Tyco decision, Valentine claimed that these first and last journeys were working time and claimed time off in lieu for this travel time. He did not, however, claim that the failure to pay him was an ‘unlawful’ deduction of wages. The original employment tribunal agreed that the travelling time constituted working time and went further to decide that the employer had made an unlawful deduction from his wages by failing to pay him for his travelling time.


The EAT did not agree – the tribunal had been wrong to decide that the employer had made unlawful deductions from his pay when Valentine himself had not claimed this. They decided also that it was clear that there had not been unlawful deductions from his pay as Valentine’s contract was clear that he had no entitlement to wages in respect of time travelling. The EAT went on to say that Tyco made it clear that the Working Time legislation is not concerned with questions of payment for working time. Therefore, the Employer could determine the amount of wages an employee should receive for their travelling time – the contract set out clearly that no payment would be made.


This case did not touch on the whether the national minimum/living wage should be paid for such travelling time; currently there is no case law on this.


If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.


Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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