Readers may remember that in our last edition we reported on an important case assessing whether workers were 'working' when they travelled from home to their first customer assignment of the day, and back home again at the end of the day, which was referred to the European Court of Justice (European Court).
On 10 September 2015 the European Court agreed with the advocate general’s opinion and held that time spent by mobile workers (those who have no set place of work) travelling to and from their first or last meeting or appointment of the day is to be treated as working time for the purposes of the Working Time Directive. This means that such time forms part of the employee’s working week and is subject to the 48 hour maximum (unless an opt-out is in place).
The ruling includes all workers who have no fixed office base such as sales staff, care workers and customer service workers whose working patterns mean that they spend the majority of their time at customer locations.
To some extent this ruling can be dealt with by using a working time opt-out. However workers cannot be forced to opt out and, even if the worker agrees, consent can be withdrawn at any time on 3 months' notice.
This ruling will not ordinarily mean that workers are entitled to additional remuneration for such travel time because the Working Time Directive does not cover remuneration (other than in the limited case of paid annual leave). Instead remuneration is usually covered by national legislation covering any National Minimum in place.
However, employers should check the exact wording of contracts of employment carefully in relation to hours of work and pay to ensure that there is no contractual right to further remuneration now that such hours are deemed as working time.
What can I do?
If you employ mobile workers in the EU you will need to review, adapt and possibly renegotiate working practices including working hours and mandatory daily, weekly and annual rest periods and contracts as soon as possible in order to remain compliant with the Working Time Regulations and also any relevant contractual obligations around salary and holiday pay. There are some obvious ways in which the effect of this decision can be mitigated such as requiring the first and last calls to be those closest to the worker’s home to reduce the amount of additional working time, but proper consultation will be the key if costly and disruptive disputes are to be avoided.
The judgement of the court can be found here.
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