An employment tribunals case involving the meaning of the Working Time Directive at the European Court of Justice (ECJ) has held that mobile workers’ travel between their homes and the premises of their first and last customers constitutes ‘working time’.
The rationale of the decision is that as the workers are acting ‘at the employer’s disposal’ for the time of the journeys and they can’t use that time to pursue their own interests, such journeys should count as ‘working time’. Although this case was referred by the Spanish Court, it is binding on UK employment tribunals.
Therefore, this ruling will have an impact on British employers who employ mobile workers. If the first and last journeys take an employee over the 48 hour a week limit, there will be a breach of the Working Time Directive. This could be a costly mistake for them if claims are brought in the employment tribunals.
The effect of this ruling could be a sharp rise in employers requesting mobile workers to opt out of the 48 hour Working Time Directive working week. Employers will want to ensure that mobile workers’ last assignments are closer to home or reduce their working hours.
Particular sectors that are likely effected include delivery drivers, aviation workers, sales reps and care workers.
This ruling leaves open questions for the employment tribunals. The term ‘home’ has not been defined for these purposes. For example, if the worker has more than one home, which one will count as his ‘home’ for these purposes? What if they are not going home but visiting family or friends at the end of their shift and this is further from or nearer to home? This will provide scope for negotiation for the employer until further clarification is made.
If the employer pays near to the minimum wage, this extra time could lead to breaches of the National Minimum Wage Act. Also, holiday time/pay is calculated based on working hours and employers who give the minimum holiday allowance could find themselves in breach of the Working Time Regulations and in front of the employment tribunal.
Case report: Tyco Integrated Security SL