The issue of working and travelling time is currently being considered by the ECJ, and an Advocate General’s Opinion was recently published in the case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL. The case involves ‘peripatetic workers’ (ie those with no fixed or habitual place of work) and the question referred by the Spanish Court related to whether the time spent by the workers travelling from their home to their first customer of the day and from their last customer to their home, should be considered as ‘working time’ for the purposes of the Working Time Directive.
In the Advocate General’s Opinion, such travelling time should be considered as working time. The AG noted that ‘working time’ under the Directive is based on three (cumulative) criteria: 1) to be at the workplace; 2) to be at the disposal of the employer; and 3) to be carrying out his activity or duties. In this case, the workers are technicians who are employed to install and maintain security systems. Each technician is responsible for a geographical area and is expected to travel to the employer’s clients each day (with such journeys potentially being over 100km). They receive a list, via an app on their mobile device, each day of the jobs they are required to complete the next day. In addition, they are required to report back each day (again via an app on their mobile device) to confirm completion of the jobs – enabling the employer to keep track of their work.
Applying the three stage test, the AG was satisfied that the conditions were met. In relation to the first limb of the test, as the workers are required to be at different premises each day, travelling for the workers is an integral part of their role and the ‘place of work cannot be reduced to the physical presence of the technicians on customer premises’ – the AG confirmed that there is no need to differentiate between journeys from the worker’s home to a designated customer and journeys the worker makes travelling between customers (which the employer accepted was ‘working time’). Turning to the second limb, the AG held the view that as the workers are travelling to the customers that have been determined by the employer, those workers are at the disposal of the employer and are subject to the authority of the employer who might modify the instruction (for example the employer might change the first appointment or add in an extra appointment at the end of the day) when they are travelling and not just when they reach their job site. Finally, in relation to the third limb, this requirement was fulfilled, again, because travelling for the workers is an integral part of their work.
The AG confirmed that ‘working time’ and ‘rest time’ are mutually exclusive concepts and there can be no ‘grey periods’. As such, neither the intensity of work nor the output are relevant to determining working time – you are either working or not. In addition, the objective of the Directive was reiterated – ie to protect the health and safety of workers and to lay down minimum requirements to improve the living and working conditions of workers.
The AG’s opinion is not binding on the ECJ – and the full judgment will follow later this year. In the meantime, any employer who employs genuinely ‘mobile’ employees (with no fixed place of work) should be thinking about how a judgment in the workers’ favour might impact their workforce. In particular, working time for many is intrinsically linked to pay and there may be national minimum wage implications (in addition to compliance with the Working Time Regulations).