Employment Law Update: Working Time / Voluntary Overtime
Workers with no Fixed Workplace: 'Working Time' can include time spent travelling to and from home
Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (C-266/14)
Neither the Working Time Directive, nor the Working Time Regulations 1998, stipulate whether travel to and from a place of work, or between places of work, should be considered as working time. The government's non statutory guidance suggests that 'time spent travelling for workers who have to travel as part of their job e.g. travelling sales reps or 24 hour plumbers' is included in working time, but that 'normal travel to and from work', and 'travelling outside of normal working hours', is not.
Tyco Integrated Security SL, and another company within the same group, specialised in security system installation and maintenance, each company employing around 75 technicians. Although, initially, the technicians were each assigned to a particular province or area of Spain, in 2011 the companies closed their provincial offices and assigned all their employees to their central office in Madrid.
Each technician used a company vehicle to travel from their home to the sites for installation or maintenance, before returning home at the end of the day. The distances from their home to the assignments varied, and were sometimes more than 100km. They received details of their assignments via an 'app' on their mobile phone, which showed their task list for the day.
The companies did not regard the first journey of the day (from home to first assignment), or the last journey of the day (from last assignment to home) as working time. As a result, they calculated the working day as starting from the arrival of the technician at their first assignment, and ending when they left their last assignment.
The technicians brought a complaint in a Spanish court that the companies were breaching the working time rules by not including their first and last journey of the day.
The Spanish court noted that the Working Time Directive only refers to either 'working time' or 'rest time' – there is no provision for situations falling between the two. However, they considered that the workers were told by mobile phone what route to follow and where the work must be done, and so they were no longer able to choose how close they lived to their place of work. As a result, it was likely that travelling time cannot be considered as rest time. That being said, neither was the employee, strictly speaking, at the employer's disposal during the journeys to the first assignment and home from the last assignment.
The Spanish court stayed proceedings, and referred a question to the European Court of Justice ('ECJ') as to whether time spent travelling by a 'peripatetic' worker, at the beginning and end of the day, constitutes 'working time', or a 'rest period'.
Advocate General's Opinion
The Advocate General gave his opinion that the first and last journeys of the day should be classified as working time. He indicated that, to meet the definition of 'working time', workers must be at the workplace, at the disposal of the employer, and carrying out their activity or duties. The Advocate General viewed travelling as an integral part of being a peripatetic worker, and a 'place of work' could not be reduced to the physical presence of the technicians on customers' premises. Further, travelling was inherent in the performance of their activities.
The most difficult criterion to determine was whether workers could be said to be at the disposal of their employer during the first and last journey. However, in the Advocate General's opinion, travelling was still done within the context of the hierarchical relationship which linked the worker to the employer. The journeys were subject to the authority of the employer, in that the employer could choose to change the order of customers or cancel an appointment, or require workers to call on an additional customer on their journey home.
Therefore, the time spent by workers travelling from their homes to the first customer and from the last customer to their homes must be considered 'working time'.
Tips for Employers
This is only an opinion of the Advocate General and is, therefore, not binding on the ECJ or the national courts and tribunals. However, such opinions are usually followed by the ECJ.
There is currently little existing ECJ case law in this area. We will keep you updated with developments.
Northern Ireland Court of Appeal considers the inclusion of voluntary overtime in holiday pay
On 17 June 2015, the Northern Ireland Court of Appeal heard submissions in Patterson v Castlereagh Borough Council, regarding whether voluntary overtime should be included in the calculation of holiday pay.
Although the outcome will not be binding on the English Courts, it will certainly be persuasive. We will inform you of the result as soon as the Judgment has been delivered.