European Court of Justice Travel Working Time Ruling – How will it affect employers and employees?

Last week the European Court of Justice (ECJ) ruled that workers with no fixed office should be paid for time spent travelling to and from work under Working Time Directive (WTD) regulations.

“The ECJ declares that, where workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employers constitutes working time within the meaning of the directive”.

The directive aims to protect workers against exploitation by regulating how many hours they work, breaks and holiday pay – i.e. maintaining a 48-hour week cap. They claim that not paying workers for long commutes to and from work distorts the concept of ‘working time’, sets a precedent for other firms to follow and jeopardises the health and safety of workers.

What has prompted the new ruling?

Commissioners Obrerars, Spain’s largest trade union, brought the case against Tyco, a Spanish security firm to the ECJ. After Tyco closed its regional offices in 2011 mobile workers had commutes of up to three hours to and from work. Rather than being paid from their time of arrival at the office, as was previously the case, they were being paid on arrival at their first appointment. This also applied to the final client of the day so no payment for travel time to or from work. Tyco were unfairly extending the working day but not remunerating staff for it.

Reactions to the ruling have been mixed. Unions say it’s a good move that helps protect workers’ rights and urge employees not to feel pressured to opt out of a 48-hour working week or accep a one-off payment instead of claiming extra hours. Veronica Nilsson from the European Trade Union Confederation said, “This is good news for many home care workers, repair and maintenance staff and other mobile workers”.

However, centre right MEPs have described it as undemocratic and interventionist, arguing that Brussels is once again poking its nose into UK business practice and that we’re not in charge of our own labour market. UK MEP Anthea McIntyre said, “This could add significantly to the costs of business and interfere with long-established business practices. It could hit smaller firms which would be bad for growth and bad for jobs”. Businesses are already facing higher costs with the introduction of the National Living Wage in July’s Budget.

What it means for employers and employees

It will have a big impact on UK businesses as many could now be in breach of working time regulations. They will need to review pay practices for mobile workers and fairly calculate wages given that many employees will be entitled to additional pay. Rotas will need to be revised to incorporate additional rest periods and first and last appointments will need to be close to workers’ homes. Employing staff that live near to client areas may become a requirement. Employees will also ask questions about the new ruling so they will need to prepare a response.

There has been some speculation that workers on the national minimum wage may abuse the ruling by claiming more for time spent travelling to work, but this isn’t likely to happen, as it is more complicated than this. The national minimum wage is a UK right rather than a European right and the 2015 regulations exclude time spent travelling between home and the workplace from the time eligible for the minimum wage. This creates a tension between the ECJ ruling on what constitutes ‘working time’ and domestic practice here in the UK. There are already tensions with the government’s long-standing opt out of the 48-hour week and recent statements from David Cameron that retaining this is a top priority as we renegotiate our position in the EU.

The ECJ has ruled in favour of workers’ rights but acknowledges that Tyco is free to decide what it pays its employees for travel time between home and work. The working time directive doesn’t apply to the remuneration of workers so it is down to employers to negotiate with trade unions and make a new ruling on this. Things are already in flux with new proposals for the national living wage, which will further complicates things for businesses in the UK.