Is rush hour set to become a happy hour for employees?29 Jun 2015
Whether its gridlock on the M6, or a cancelled or redirected train, our traditional early morning ‘rush hour’ is indicative of the vast number of commuters that spend significant amounts of time travelling various distances to and from work each day. The essential question for employers is: “can this time form part of their working day?” The answer seems to be, yes it can.
In a recent European case, Federación de Servicios Privados del sindicato Comisiones Obreras, clarification was needed as to whether a worker expected to travel from place to place as part of their job was involved in “working time” whilst travelling to their first customer or client, and then whilst travelling home.
The Working Time Regulations 1998 currently defines “working time” as:
• Any period during which the worker is working, at his employer’s disposal and carrying out his activity or duties;
• Any period during which he is receiving relevant training; and
• Any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement.
The case, which was referred to the European Court of Justice (ECJ) from a Spanish court, involved a group of workers who drove long distances in company vehicles to customers throughout Spain in order to install security systems. The workers complained that their employer was breaching working time rules by not treating their first and last journeys of the day, which could at times be as far as 100km, as working time.
Advocate General Bot considered that this was “working time” for the purposes of the European Working Time Directive.
According to the Advocate General, travelling was an integral part of the worker’s job and therefore he could be considered to be at the workplace (albeit not physically) and engaged in work duties whilst not at the employer’s premises. It was also significant that the purpose of the Working Time Directive is to offer workers a period of rest, which could not be achieved whilst the worker remained under the employer’s instruction and control as they were during the course of travel.
Many employers are concerned that if followed by the ECJ, this would open the door for workers to take advantage of such working time to carry on their personal business. The Advocate General suggested that such concerns were not sufficient to alter the underlying principle of rest and that employers should put in place the necessary monitoring procedures to avoid abuse.
Whilst the Advocate General’s opinion is not binding on the ECJ, opinions are usually followed and this is therefore indicative of how UK courts are likely to be required to interpret domestic law in the future. The ECJ determination should provide much needed clarity in defining working time for mobile workers with no fixed workplace and highlights the fact that employers ought to seek further advice and/or review contractual terms where necessary to ensure compliance.
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