A reminder to employers of 'mobile workers' regarding working time

Employment law solicitor, David Dixey, discusses some possible implications to your business after recent a legal ruling.

If the operations of your business are such that your employees are without a fixed or habitual place of work (also known as peripatetic workers), such as an employed tradesman, carer or sales representative, a landmark Employment Law case may have important implications for your business. At the very least you should be aware of the decision. The ruling was actually made last year but such are its implications for businesses, I think it is worthwhile reminding readers of what it means for employers in practical terms.

The European Court of Justice (ECJ) case concerned the company Tyco Integrated Security which installs and maintains security equipment in Spain. The company did not treat employees’ travel from home to customers’ premises as “working time” under the Working Time Directive. The company maintained that the workers travelling between their home and the premises of their first and last customers of the day were not in “working time”. The definition of “working time” is important as it has a bearing upon pay and (in the UK) the employer’s compliance with rules concerning employees working in excess of a 48 hour week.

The ECJ confirmed in its judgment that the first and last journeys of the day to customers’ premises should be regarded as “working time” on the grounds that:

1. During these trips the employee was at the employer’s disposal;
2. The employee would be carrying out their activity or duties in accordance with national laws and/or practise.

The ruling does not change the status of the “daily commute” to an employee’s usual place of work (office, factory etc). Those journeys are not considered to be in “working time” for the purposes of the Regulations. The decision only has ramifications for employees travelling to and from customers home/premises at the beginning or end of the day.

Whilst this case law derives from Europe and as we now know Britain will be leaving the EU, this ruling will dictate the law until such time as Britain has relinquished its formal ties and may even remain in place beyond that point, depending on decision made regarding various piece of legislation.

However, there are a number of possible implications for those employers with staff that fall within the category of not having a fixed place of work and whom travel to and from different sites. These include:

1. Increased wage bill (although much would depend upon workers’ contractual terms). For workers paid on an hourly basis, this court decision effectively increases the number of hours the employee is entitled to be paid for.
   
2. Employees’ working week may now exceed 48 hours placing the employer in breach of the Working Time Regulations (unless the employee has already signed an “opt out” in relation to the 48 hour weekly limit). If you believe there may be employees of the business working close to 48 hours a week and they travel directly to or from customers’ premises, you should discuss your employees working hours with them.
   
3. Employees may attempt to raise the issue within the context of the national minimum wage, notwithstanding that separate specific rules exist defining travel time under the minimum wage Regulations. This is only likely to become an issue where employees are being paid the minimum wage, or close to, and the increase in working hours brought about by this decision means their salary now no longer equates to the minimum hourly wage. If this is the case within your businesses, it is recommended action is taken immediately so as to remain compliant.

Employment Law advice for employers

If you are an employer that has not yet taken Employment Law advice on this issue, contact David Dixey on 01376 320456. David offers Employment Law advice to employers across Essex and Suffolk.