Mobile work and EU ruling

by Mark Rowe

The European Court of Justice recently issued a ruling on the time that mobile workers spend travelling and whether this is classed as actual working time, our regular contributor Jim Gannon writes.

A European Union court ruling that will require employers to treat commuting time as work, has been criticised by some business groups, who say it is yet another example of Luxembourg deciding what is best for Britain. After widespread media coverage on the latest ruling, employers try and pick their way through the detail. The European Court of Justice (ECJ) has ruled that for workers with no fixed office, travel should be counted as working time under the EU’s Working Time Directive (WTD).
The ruling is expected to affect sectors with large numbers of travelling workers, such as care workers, service engineers, sales staff and certainly some sectors of the security industry. Business leaders have been outspoken on the subject, quoted in the business and popular press. One such quote came in the Daily Telegraph from Adam Marshall, executive director of policy at the British Chambers of Commerce, who said: “Once again, a faraway court is taking decisions that could impact business prospects, job creation and economic growth in the UK. Companies of all sizes will be dismayed that Luxembourg is once again intervening in a way that stops EU member states from running their own labour markets.”
The WTD limits the working week to 48 hours on average. Many British employees choose to opt out of the time cap. The merits of this have for a long time been questioned by unions.

On a limb
Many companies are likely to find themselves inadvertently in breach of the new rules and could be forced to put wages up to attract new staff and avoid breaking minimum wage rules. Those companies already under contract to supply services on tight margins will be reeling from the possible implications. According to some experts in the field, the fact that the period mobile workers spend travelling between home and their first client in the morning should now count as working time goes beyond the protections offered or intended by previous rulings. Recent EU decisions have included rulings on holiday pay, how leave carries over between years, and rest periods from work, and have also proved unpopular with some UK employers who say it is just more red tape, and a burden.

David Cameron, and CBI position
While MPs are no doubt going to be pressed by their business constituents, David Cameron the Prime Minister, has made clear that retaining the ability of UK workers to opt out from the WTD is one of his priorities in negotiating with the EU. Neil Carberry, the Confederation of British Industry’s director for employment and skills, was recently also quoted in the Daily Telegraph as saying: “Given that this ruling extends working time, it again emphasises that the voluntary individual opt-out from working time rules is a vital part of ensuring the system works in the UK. We want to see the ‘opt out’ protected.” Those negotiating contracts especially where the margins are already thin, such as manned guarding, do not want to have costs and extra burdens thrust upon them without notice, as appears to have happened with this latest ruling. HR departments and employment experts will be considering the implications of this latest EU judgement over the coming months while employers will sweat it out trying to work out the possible effects.

Research and facts
I came across a paper on the facts behind the ruling and it turned out to be written by a Stuart McBride whom I knew when he was President of the University of Leicester Students’ Union. He is now a partner in TLT Solicitors. My interest in the case became heightened when I found the ruling came out of a case involving a security engineer and Stuart set out with some clarity the facts behind the ruling.

The ECJ held that journeys made by mobile workers (those without a fixed or habitual place of work) between their home and the first and last customers of the day constitute ‘working time’ under the Working Time Directive (the Directive).

The workers in question were responsible for installing and maintaining security systems within an assigned geographical area. The employer would determine, on any given day, which customers each worker would visit. The dispute arose after the employer’s regional office was closed. Under the workers’ previous arrangement, they were required to travel to the office prior to travelling to their first customer. Travel time from that office to the first customer had been treated as ‘working time’. However, following the office closure, workers instead travelled direct from their home to their first customer. The employer did not treat this travel time as ‘working time’. It was instead treated as ‘rest time’.

The ECJ held that the workers’ journeys should be treated as ‘working time’ because they met the three criteria for ‘working time’ as set out in the Directive:

– Carrying out activity – Travel to and from customers was a necessary means of providing the workers’ service to customers. Therefore the time spent travelling should be regarded as forming part of the activity of those workers.

– At the employer’s disposal – As the list and order of the customers was determined by the employer, the workers were at the disposal of the employer during the journeys. During that time, the workers were required to act on the instructions of the employer and were not able to use their time freely to pursue their own interests.

– At work – Given that travel is an integral part of being a mobile worker, their place of work could not be reduced to the customer’s physical premises. Such workers must be considered to be ‘at work’ when using transport to travel to a customer designated by their employer, regardless of the starting point.

The ECJ was particularly concerned about the health and safety function of the ‘working time’ provisions, and the fact that, if time is not considered ‘working time’ it is by default ‘rest time’. Since the place of work varied daily according to the customer appointments arranged by the employer, the affected workers had no control over the distance and travel time between their homes and their place of work. Therefore, the necessary travel time could not be regarded as a rest period as it would undermine the essential function of such periods, being to compensate for fatigue arising from periods of work.

Implications for pay
The decision does not apply to the pay of workers. This was expressly recognised by the ECJ in its judgement. Pay is dealt with by the National Minimum Wage Regulations 2015 (NMW Regulations) and the employee’s contract of employment. For the majority of workers, the NMW Regulations expressly exclude travel time between a worker’s home and the place the assignment will be carried out (or their place of work), and this is unaffected by the ECJ’s decision.

Recent case law supports this – in a 2014 decision (Whittlestone versus BJP Home Support Limited) the Employment Appeal Tribunal (EAT) held that, for mobile workers, the national minimum wage should be paid for time spent travelling between the assignments themselves, but not for time spent travelling between home and the assignments.

Despite this, employers may come under pressure to pay workers for travel time. The ECJ’s decision is likely to bring to workers’ and unions’ attention the potential for them to argue that, as this type of travel time is now deemed to be working time, it should be accounted for in a worker’s pay.
Whilst the NMW Regulations are clear, the contractual wording around pay needs to be considered. For instance, arguments may be put forward that contractual overtime provisions are triggered by the extension of a mobile worker’s ‘working time’ as a result of the ECJ decision. Similarly, employees who are paid on an hourly basis may argue that they should receive payment for the additional hours ‘worked’. The strength of such arguments will rest on an analysis of the relevant contract as well as previous custom and practice. This is something employment specialists like TLT will be able to help employers with.

In the UK, the Directive is implemented by the Working Time Regulations 1998 (the WT Regulations) and the ECJ’s decision will apply automatically. Given that more of a mobile worker’s working day will count as ‘working time’, employers will need to ensure that they are complying with their obligations under the WT Regulations with regard to rest breaks, daily and weekly rest periods, and the 48 hour limit on average weekly working time. This is likely to have related cost consequences for employers due to the impact the decision is likely to have on how a mobile worker’s working day can be structured (and consequently how many customers or clients they can visit in a working day) to remain compliant with the WT Regulations given the extension of ‘working time’.

In the event that UK businesses do not comply with this decision, they could face claims for breach of the WT Regulations by employees or trade unions, or enforcement action by the Health and Safety Executive or Local Authority Environmental Health departments. Despite opposition to the decision from the UK government who argued that it would lead to an inevitable increase in costs for employers, no legal challenge is expected at present. Any such challenge would involve a lengthy procedure – it would therefore seem prudent for businesses to proceed on the basis that this decision will stand for the foreseeable future.

End game
The reality of this ruling is clear to see especially for some areas of the security industry. As the facts filtrate through employees affected by the new ruling the burden of the additional time needed to deal with the issues involved will on its own cause a headache for business managers.


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