Travelling is part of working hours, European Court rules

Nick Elvin

Time spent travelling to and from home to appointments by workers without a fixed office must be regarded as working time, the European Court of Justice has ruled.

It means that workers should be paid for time spent travelling to and from their first and last appointment of the day – although the ruling does not apply to people’s daily commute to their normal place of work.

The court considered a case referred to it by the Spanish high court, concerning a company that was not counting the journeys its workers made from their homes to customers’ premises – journeys that were taking up to 15 hours a week.

Employment law consultant at HR firm ELAS, Emma O’Leary said the ruling will have a significant impact on thousands of businesses and millions of workers.

“Those that will be affected immediately include those that are care workers, plumbers, gas fitters, sales reps, mobile fitters, and those that employ them,” she said.

“The knock-on effect is that hundreds or even thousands of businesses across the UK could find that they are in breach of other employment law regulations, including minimum wage breaches and working time regulation rules.

“As a result, it is important that all employers affected immediately check the wording within all of their employment contracts to ensure that this change is accounted for within their own legal documents. Furthermore, businesses will also need to ensure that these changes do not result in an employee being paid below the minimum wage (whether hourly or annually), or contracted to serve above the maximum number of hours permitted within a working week as stipulated by The Working Time Regulations (1998) (48 hours per week). Therefore, contract wording needs to be clear and clients must ensure opt out agreements are signed by employees.”

Director of umbrella company Evergreen, Jovan Pavlicevic said that when Agency Worker Regulations (AWR) are considered, the situation becomes more complicated. Under the AWR, after a period of 12 weeks, any agency worker is entitled to the same working conditions as a traditional employee. As a result, employers may have to rearrange the first and last appointment of a day to be close to a worker’s home.

“This ruling is definitely a step in the right direction,” he said. “Workers need a minimum rest time to be able to operate at peak efficiency. The worry is that AWR has just become significantly more complex. There comes a point where legislation becomes overly limiting, and we may be fast approaching that now.

“The legislation invites just as many questions as it answers. The recent travel and subsistence review, which stated that no tax relief shall be provided to employees under the IR35 system when they’re travelling to or from work, may well have to be altered to fit the new plans.”

Welcoming the ruling, TUC general secretary Frances O’Grady said: “Many bosses are already fair-minded about travel time for journeys to customers.

“But this sensible ruling will prevent unscrupulous employers opening up a loophole to force some staff to work upwards of 60 hours a week.”