17 June 2015

The definition of “working time” is crucial to the operation of the Working Time Regulations, and the various limits on weekly working time, daily working time, night work, rest breaks etc. A key issue is whether travel time counts as working time.

It has always been clear that while travelling during the working day on the employer’s business will be working time, travelling to the employee’s normal place of work, from home, and vice versa, is not. This leaves a grey area in relation to employees who have no normal place of work but spend their whole day visiting customers at various locations. Many employers will state that time spent travelling to the first appointment of the day, and time spent travelling from the last appointment to home at the end of the day, is not working time.

An opinion has now been issued by the Advocate General in the European Court in the case of Tyco Integrated Security SL. This is a preliminary opinion that is not binding on the full European Court, but such opinions are often followed by the Court. The full judgment will be issued later this year.

The Advocate General’s opinion is that travelling workers who have no fixed or habitual place of work are engaged in “working time” under the Directive when travelling from home to the first customer and from the last customer back to their homes. For such workers, travelling is an integral part of the work provided under the contract of employment and is a necessary means of servicing the customers, therefore it is part of the workers’ activities. There are only 2 categories of time – work and rest. The opinion concluded that the travelling time in such cases was working time not resting time. The employees were under the employer’s authority and direction and the travel was integral to the work required of them under the contract.

It remains to be seen whether this opinion will be followed by the European Court later in the year, but it is a potentially far reaching one. Any decision of the European Court would have to be applied by the UK courts and tribunals in relation to any claims about working time, and clearly therefore there would be significant implications for all employers who have “mobile” or “peripatetic” staff. The Working Time Regulations are complex, and should you have any concerns about the rights of workers under these Regulations, or the definition of “working time” please contact us for advice.

Douglas Strang, Senior Associate dst@bto.co.uk T. 0141 221 8012