Employment e-Brief: Travelling time and working time

In Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor, Advocate General Bot has given an opinion which could have implications for organisations that employ workers with no fixed or habitual workplace, otherwise known as “peripatetic” workers.

He said that such workers should be able to count time spent travelling from home to the first customer and travelling from the last customer back home as “working time”.

The workers in this case installed and maintained security equipment at homes and business premises. Each worker had responsibility for a geographical area and had a company vehicle to travel to see customers. Their daily travelling time varied but could be as much as over 100km. TIS had a policy where the first journey and the last journey of the day did not count as “working time”. The workers said this was in conflict with the EU Working Time Directive (which the Working Time Regulations 1998 implement in the UK). After a brief siesta, the Spanish court referred the case to the European Court of Justice (ECJ).

AG Bot identified that the EU Working Time Directive classifies “working time” and “rest”. There is no intermediate category so time must therefore be one of those. He stated that to classify time as “working time” three criteria must be in evidence:

• A worker must be at their workplace;
• They must be at the disposal of their employer; and
• They must be carrying out their work activity or duties.

In AG Bot’s view, all three criteria were fulfilled because:

• Travelling is a key part of the work and is inherent in the performance of the work of peripatetic workers who are required to work at different premises every day so the workplace cannot be confined to just performing work at customer premises given that travelling is an integral part of the job – thus fulfilling the first criteria;
• By travelling to customers determined by their employer and for their employer’s benefit, they were at their employer’s disposal – thus fulfilling the second criteria; and
• Travelling is an inherent part of a peripatetic worker performing their work – thus fulfilling the third criteria.

While the AG’s opinion is not binding on the ECJ, it is usually followed. The ECJ will give its judgment later this year and we will update you then.

For further advice please contact a member of the employment team on 0113 227 0344.