The law is clear that travel time during the working day counts as working time (as we covered in our previous article here), but some people had thought that the worker’s journey to their first appointment of the day and their travel home after their last appointment would not count. However, this may be about to change.
Recently, an Advocate-General of the European Court of Justice has issued an opinion on the question of whether a worker’s first and last journeys of the day count as ‘working time’ under the European Directive. The Advocate-General’s opinion is not legally binding, so whilst the ECJ does usually follow Advocate General opinions, we will have to wait for the Court’s judgement to find out if the Advocate General’s opinion in this case will be upheld.
The workers in this case were technicians whose jobs required them to drive to customers at various locations across Spain. Initially they were assigned to regional offices, and the working day started when they arrived at the company premises to collect their company vehicle and lists of customers to be seen that day. The working day ended when they returned the vehicle to the company premises before going home for the day.
However, the company decided to close the regional offices and the technicians were assigned to the central office in Madrid. Following this, the workers were notified of their appointments for the next day via an app on their mobile telephones and used company vehicles to travel from home to their appointments. The company did not count the time the technicians spent travelling from home to their first appointment of the day, or the time they spent travelling from their last appointment of the day back home, as ‘working time’ even though the journeys could sometimes be more than 100km.
The issue of whether the time the workers spent travelling was ‘working time’ or ‘rest time’ under the Directive was relevant to the minimum rest periods they would be entitled to and the maximum average 48 hour working week. The Advocate General found that the time spent travelling should be ‘working time’ because the workers would be carrying out their duties during this time, and they were at the disposal of their employer during the time spent travelling because their journeys and the distances involved were dependent on the employer.
The Advocate-General acknowledged the possibility that workers could misuse this e.g. by using those journeys for personal business, but noted that it is up to the employer to monitor this and it was the employer’s decision to close the workers’ fixed places of work.
If this decision is followed by the ECJ, this could have implications for employers whose workers are not assigned to a fixed place of work, as their first and last journeys of the day may count as ‘working time’. We will of course keep you up to date with developments.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).