Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco
This is an important case for businesses in the construction, care, security and catering sectors. It also affects businesses that employ sales staff, engineers, or others who travel between customers.
The Court of Justice of the European Union has decided that mobile workers’ first and last journeys of the day will now count as working time. Workers (which covers employees) who do not have a fixed office or base are ‘working’, for the purposes of the Working Time Directive, when they drive from home to their first appointment of the day and from their last appointment home. The Court decided that these are not ‘rest periods’, as the employer in this case had claimed. It is working time.
What does this mean for you?
First, you need to make sure that your workers are not ‘working’ too much and exceeding limits set by the Working Time Regulations. Remember all workers are entitled to a 20-minute rest break every 6 hours, and to 11 hours uninterrupted rest every 24 hours. You now need to include their travelling time as part of ‘working time’, meaning that the workers might be entitled to rest breaks – or, at least, different patterns of breaks which they were not previously entitled to.
Second, there are implications for the maximum 48-hour working week. If the worker spends one hour travelling to their first site, and one hour returning home at the end of the day, this adds ten hours to their working week. If that pushes them over 48 hours (normally averaged over 17 weeks), you are probably breaking the law unless they have signed a document opting out of their legal rights.
Third, there may be ramifications for pay. Contrary to what has been reported in the national press, these hours will not count for calculating whether someone is receiving the national minimum wage. So on the example above, just because an employee is working an extra 10 hours per week, you do not need to worry about their average hourly rate being pushed below the minimum wage.
However there may be other important points on pay. If they are paid by the hour, and your contracts do not define what is meant by ‘working time’ (i.e. they do not exclude this travel time), there is a risk that they will be able to bring a claim for unpaid salary at their normal hourly rate. Such claims can be backdated for up to two years in an employment tribunal, and up to six years in the small claims court.
You may need to think about introducing contractual changes, altering shift patterns and factoring in additional rest breaks. It is worth talking to us to discuss the impact on your business, and how you will need to adapt.