A preliminary ruling by the European Court of Justice regarding the definition of ‘working time’ could raise costs for business, according to industry experts.
The recent case of Federación de Servicios Privados del sindicato Comisiones Obreras (CC.OO.) v Tyco Integrated Security SL & Anor Case C-266/14 addressed whether hours spent travelling to and from work by a certain category of workers could be defined as “working time”. A preliminary ruling determining that it should indeed be defined as “working time”, with the consequent effect that certain categories of workers should be paid for time spent travelling to and from work.
The request for a preliminary ruling arose from Spanish proceedings that involved a claim against two security system maintenance companies, Tyco Integrated Security and Tyco Integrated Fire & Security Corporation Servicios (“Tyco”). In 2011 Tyco closed its offices in its Spanish provinces and transferred all of its existing employees to its head office in Madrid.
The technicians employed by Tyco continued to work in the regions that they were previously assigned to and had no fixed place of work – this meant that they often had to travel large distances in company vehicles to carry out assignments (sometimes more than 100km). Tyco counted the time travelling to and from assignments as ‘rest time’ (not ‘working time’).
The Working Time Directive states that employers must take all reasonable steps in keeping with the need to protect workers’ health and safety to ensure that each workers’ average working time (including overtime) does not exceed 48 hours per week. Tyco’s technicians brought a claim in the Spanish courts asserting that, by inappropriately defining the time spent travelling to and from work as “rest time”, Tyco was breaching the Working Time Directive as it was requesting that they work over 48 hours per week.
The Spanish courts found that the time spent travelling by these peripatetic workers could not be defined as “rest time” for the purpose of the Working Time Directive but it did not find that the travel time spent was “working time” as it was not time during which the worker was, strictly speaking, at his employer’s disposal so he could be assigned work. The Spanish courts referred the question as to whether travel time for these peripatetic workers was defined as “working time” or “rest time” for the purpose of the Working Time Directive and the Advocate General gave his Opinion this week. Advocate General Bot came to the conclusion that the time spent travelling to and from work by peripatetic workers was to be defined as “working time” as
- There was no intermediate category between working time and rest time
- Factors considered by the Spanish courts in reaching their decision were irrelevant (e.g. the intensity of the worker and the output of the worker)
- The activities of these workers met the definition required to be working time: they were at a workplace; at the disposal of their employer; and carrying out activities or duties assigned to them
Advocate General Bot also stated that excluding such journeys for peripatetic workers from the definition of “working time” would be contrary to the pursuance of the objective of protecting the health and safety of workers under the Working Time Directive.
The effect of this ruling does not mean that workers with no fixed location of work will now be paid for the time spent travelling to and from work but is concerned with the organisation of a worker’s working week regarding average working time, rest periods, and minimum amounts of paid holiday. Advocate Bot’s Opinion did in fact expressly state that whether time spent travelling to and from work should be paid was a matter which should be dealt with by national legislation.
Chris Hadrill, an employment solicitor at Redmans, commented on the ruling: “This ruling does not mean that peripatetic workers should now be paid for working time. However, it may mean that costs to businesses may be raised as it may be necessary for businesses to review their practices and policies relating to travelling time and potentially reorganise their workers’ working weeks to comply with the Working Time Directive (implemented in the UK by the Working Time Regulations 1998).
A copy of the judgment can be found here and a copy of the official press release can be obtained here.
Redmans
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