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MILS Case Study: Travel to WorkBack


In the case of mobile workers, does the time spent travelling from home to customers’ premises at the start of the day, and from the customers’ premises to home, have be regarded as ‘working time’ for the purposes of the Working Time Directive?

It does following the ruling from the Spanish case of Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, known as the Tyco case.

This case was sent to the European Court of Justice (EJC) for consideration. The facts of the case were that Tyco employed technicians who installed and maintained security equipment at customers’ premises in Spain. The technicians were provided with a vehicle and they travelled from their own homes to the locations they were instructed to install the equipment, sometimes of distances exceeding 100km. They were in contact with their employer by mobile phone and were not generally required to travel to an office or a central location, save for the weekly purpose of collecting tools and materials.

Tyco argued that the technicians’ travelling time was a “rest period”, for the purposes of the Working Time Directive and the relevant Spanish legislation, rather than working time because they were not carrying out any installations or maintenance during those periods. Tyco also argued that because the technicians’ had the individual autonomy to make decisions as to their itinerary and which route(s) to take during their travelling time, these factors put them outside the boundaries of the Directive.

The EJC disagreed with their first argument, stating that such an argument “would distort that concept and jeopardise the objective of protecting the safety and health of workers” and that it was working time. The ECJ also disagreed with their second argument and made reference to the fact that the travelling time can neither be shortened nor used freely by the technicians for their own interests. Therefore it was concluded that the technicians were “at the disposal” of Tyco and thus their travelling time was covered by the Directive.

The result of the case was the ECJ finding that travel time for workers without a fixed work place, when travelling to the first customer/from the last customer, is counted as working time. This decision was based on both the Advocate General and the ECJ finding that the three criteria of working time, under Article 2 of the Working Time Directive, was satisfied. Namely that the time travelling was spent carrying out their duties/activity to and from customers. Secondly the workers remained at the employer’s disposal because their destination/route could change. In other words they were not free to go about and do their own personal errands. Thirdly the travel time was considered as work because they were carrying out their duties on journeys to and from the customers. The court held that the journeys starting and finishing at the worker’s home was irrelevant and in this case it was simply as a result of the company abolishing regional offices.

Whether employers in the UK need to do anything depends on whether they have employees who do not have a fixed place of work. If they do then under this ruling the start and end travel time should be included albeit technically this decision is not yet legally binding on our UK courts in the private sector. It is much like the holiday pay situation whereby Europe has given a decision and we wait to see how it is implemented in the UK courts. If employers want to take a safer legal approach, it would be wise to incorporate this practice. No doubt a test case in our Employment Tribunals will follow.

Andrew Macmillan, Solicitor, Motor Industry Legal Services

Posted by Sue Robinson on 30/10/2015