travel time for mobile workers

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Are mobile workers entitled to be paid for travel time?

Seamus McGranaghan

O'reilly stewart solicitors.

Q: In light of the Tyco decision , are mobile workers entitled to be paid for time spent travelling between home and the places where they work?

Seamus: Well, I think if we take this back, because what we're talking about here is the Working Time Regulations 1998 , and if we look at sort of how that's defined within the regulations itself. So working time itself is defined as any period during which the worker is working at his or her employer's disposal and carrying out his or her activities or duties in terms of that, or any period where he or she is receiving relevant training, and any additional period designated as working under a relevant agreement, so if there's a separate agreement to say you also work during this period of time.

Working time includes travelling where it is an integral part of the role and in Tyco that was the aspects when you're talking about those sorts of sales executives or mobile repair person, where they're travelling from place to place to place and they might not have a base in terms of they may just leave their house in the morning, they may get an email on a Sunday night or a Friday afternoon to say these are your list of calls for the week. And they never go near the office.

Scott: The office, which is what happened in Tyco. They closed the regional office. They ended up working from home and they were travelling all the time. So since they were going to their work, they had no base, effectively, their workplace was their home, or at least that's where they left from every day. They never went into the office and then left from the office. So they didn't go from home to office, as most of us do.

So we wouldn't get paid and it wouldn't be working time if we're travelling, but this question is about mobile peripatetic workers, no fixed place of work. And those ones would qualify under the working time, they're not regulations, but they're really a directive. Regulations haven't really been changed.

Seamus: No. And that's the basic position. So for those types of scenarios, the time essentially spent by the worker travelling each day between their home and the premises. And if you look at the sort of first and last call basis of how that works out, that time is designated as being working time and they're entitled to payment in at that point.

So it's really about looking, I mean, it's a broad question in terms of, I have to say, all mobile workers. I think you need to look at the particular circumstances. Is it that the employee is one day a week coming in to the office, maybe to pick parts up or pick up more stock or whatever it is, and then what way is that working. So it's not just as simple as saying you're five days a week, you're getting payments. I think you have to look at the individual circumstances of it.

Scott: In this case, certainly travel time could count as working time. And of course, once you've got that, you then fall into the other working time issues of shifts and breaks and everything else that comes into it just because of that time. And it might have been that in Tyco their first journey was an hour away and their last one was three hours away. Well, that's four hours extra working time added onto their working day. So it could be quite costly unless you plan the route to make sure that they finish near their house.

Seamus: Yes, significantly, and that's the job for the employer to be smart about that and make sure that the process is working as efficiently as possible.

Scott: We've got a little clarification question here.

Did the Tyco case not just relate to working time in relation to rest breaks as opposed to pay?

Scott: My recollection is that the European court did indeed say the payment was a matter for the domestic authorities.

Seamus: Authorities, yes.

Scott: So within the U.K., that would be a matter of does it accrue National Minimum Wage? Well, that's up to the U.K. government to say it...

Seamus: They make the decision in terms of that.

Scott: ...and so on. But the bottom line is, it did qualify as working time, and therefore the rest breaks would have had to be in that. And I can't see where something's deemed to be working time, that it wouldn't attract the normal payments. Because that's the same argument we have with all the sleepovers and everything. If they count as working time, why wouldn't they attract the National Minimum Wage?

Seamus: Yes. It would be hard to, I think, argue your way out of that one.

Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

The main content of this article was provided by Seamus McGranaghan . Contact telephone number is 028 9032 1000 or email [email protected]

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Mobile workers, travel time and the Working Time Regulations

The issue of whether mobile workers’ travelling time between their home and the premises of their first and last customers counts as ‘working time’ under the Working Time Directive, has been a hot potato for some time.

In a Spanish case yesterday, where workers were assigned to a central office, but had no fixed place of work and were each responsible for a geographical area which involved travelling varying distances but returning to their home each day, the European Court of Justice held that time travelling from a worker’s home to a customer’s premises, or vice versa was in fact ‘working time’.

The court considered arguments that travelling time was a ‘rest period’ as the workers were not physically carrying out any work as well as the fact that the workers had complete autonomy to determine their own itinerary and which routes to take.

The Court concluded that:

travelling was an integral part of being a mobile worker and their place of work was not restricted to their customer’s premises;
the journeys were necessary to provide their services to the customer;
the workers were at the disposal of their employer; and
the travelling time could not be shortened or else used freely by the workers for their own purposes or interests.

What does this mean for UK Companies?

The Working Time Regulations 1998 (“WTR”) implement the Working Time Directive. Amongst other things, the WTR govern hours of work, night workers, rest breaks and paid holiday, each of which may now be affected by this decision and are considered below.

Hours of work and night working

An employer should ensure that a workers’ average working time does not exceed 48 hours per week unless they have opted out of this restriction. If travelling time to and from the first and last job of the day now counts as working time, it may be that an employer could fall foul of this restriction. In addition, where long journeys are involved on a regular basis, requiring an early or late start or finish, employers needs to ensure that the workers are not classed as night workers, whereby they are afforded additional protection and subject to different working time limits.

Rest breaks

Workers are entitled to a rest break of 20 minutes when working more than 6 hours per day and 11 hours uninterrupted rest per day. With the addition of travelling time, employers need to ensure they are providing workers with adequate rest breaks to avoid contravening the legislation and breaching their duty of care for the worker’s health, safety and welfare.

Where employees are contracted to work a set number of hours, with travelling time counting towards working time, it may be that remuneration needs to be addressed. If the workers are paid overtime for any hours worked in excess of their contractual hours, following the judgment last year, it may be that the worker’s holiday pay will also need to be calculated, based on average earnings, including overtime payments. It is clear that the decision will have far reaching financial implications for UK Companies.

Employment Contract considerations

It is obligatory for employees to have a written statement of terms and conditions of employment. This includes provisions such as remuneration, holiday and working hours. Any changes to contractual terms should be updated within 1 month of the change becoming effective and it is advisable to review your employees’ contracts.

For advice or assistance on any employment law related matter, please contact Lianne Payne, Head of Employment at Askews Legal LLP. E: [email protected] T: 024 76 231000

Askews Legal LLP -Coventry Solicitors.