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ECJ rules travelling time counts as work

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Travelling to and from first and last appointments should be regarded as working time for workers without a fixed office

Time spent travelling to and from first and last appointments should be regarded as working time for workers without a fixed office, the European Court of Justice (ECJ) has ruled.

The ruling follows an ongoing legal case in Spain involving security systems installation company Tyco, which counted the time spent travelling between home and customers as ‘rest periods’. It is likely to impact employers with mobile employees who schedule visits with customers, such as gas fitters and care workers.

The ECJ said that the place of work of that individual “cannot be reduced to the physical areas of his work on the premises of the employer’s customers,” and that requiring them to bear the burden of their employer’s choice would be “contrary to the objective of protecting the safety and health of workers” pursued by the Working Time Directive.

Catrina Smith, partner at global legal practice Norton Rose Fulbright, advised that employers who have mobile workers with no fixed or habitual place of work should check whether time spent travelling at the beginning and end of the day amounts to working time. “If so they will need to check that the employees are having sufficient rest periods and are not breaching the maximum weekly working hours,” she said. “They will also need to consider whether they wish to make any changes to remuneration structures to prevent increases in costs.

“For well-paid employees there may be some flexibility, although issues could arise in agreeing any changes to the worker’s terms and conditions. For employees paid the national minimum wage to whom this may apply, employers will have less flexibility to change remuneration levels.”

Aye Limbin-Glassey, employment law partner at legal firm Shakespeare Martineau, said that the ruling presents “yet another hurdle for employers to overcome, courtesy of the European Court.”

“If incorrectly managed jobs could be put at risk as businesses struggle to absorb additional wage costs,” she said. “It is important, however, that employers avoid making any knee-jerk decisions and evaluate how they can best adapt their working practices. Employment contracts may need to be amended for organisations to remain commercially viable, allowing them to mobilise a larger workforce that can travel to a wider spread of geographical locations. This could lead to an increase in flexible and zero-hours contracts."

“The need to pay employees for travel time means that for some companies visiting clients in remote areas may no longer be profitable. If this is the case new contract opportunities should be carefully analysed,” she added.