Following on from Claudia Rooney’s post in June (see here) regarding the issue of travelling time v working time, the ECJ has now handed down its judgment in the case of Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor. To recap, the case involved peripatetic workers (those with no fixed or habitual place of work) and the question referred by the Spanish Court to the ECJ related to whether the time spent by the workers travelling from their homes to their first customers of the day and from their last customers of the day to their homes counted as “working time” for the purposes of the Working Time Directive (“WTD”).
The ECJ has agreed with the Advocate General’s Opinion, that for workers who do not have a fixed or habitual place of work, time spent travelling between home and customers does constitute “working time” for the purposes of the WTD.
The ECJ noted the 3 criteria set out in the definition of “working time” in Article 2 of the WTD and how these criteria have consistently been interpreted in case law (i.e. that the worker is: i) at work, ii) at the employer’s disposal, and iii) carrying out his/her activities or duties.) The ECJ determined that the workers’ journeys were a necessary means of them providing their technical services to the employer’s customers and so they had to be regarded as carrying out their activities or duties during that time. Their employer determined which customers the workers were to visit and in what order, as well as the appointment times. The workers were not free to plan their own working time and therefore the ECJ determined that they were at the employer’s disposal. The ECJ found that because travelling is an integral part of being a peripatetic worker, it could not be said that the workers’ “place of work” was restricted to customers’ premises.
The UK Government had contended that finding in the workers’ favour would lead to an inevitable increase in costs for the employer, however the ECJ noted in its judgment that the employer was free to determine the rate of remuneration for travelling time and that, save for paid annual leave, the WTD does not apply to the remuneration of workers; this would be a matter for the national laws of member states.