Travel time to first job of the day counts as working time

17 June 2015

A preliminary ruling in a Spanish court has said that the time peripatetic workers spend travelling from home to their first customer and from the last customer back to their homes, counts as working time for the purposes of the Working Time Directive.

With thanks to Daniel Barnett’s employment law bulletin for the following case summary.

Does the time that workers (who are not assigned to a fixed or habitual place of work) spend travelling from home to their first customer, and from the last customer back to their homes, count as 'working time' for the purposes of the Working Time Directive?

Yes, suggested Advocate General Bot in Federación de Servicios Privados del sindicato Comisiones Obreras.

According to the Advocate General, there are three aspects to 'working time': being (1) at the workplace, (2) at the disposal of the employer, (3) engaged in work duties (C-151/02 Jäger).

For peripatetic workers: aspect (1) was fulfilled because travelling is an integral part of the job, such that the workplace cannot only be considered as performing work at clients' premises; aspect (2) was fulfilled because routes and destinations are determined by the employer who could at any point modify the instruction; and aspect (3) was fulfilled because, again, travelling is integral to the peripatetic work.

The Advocate General saw no distinction between travel between jobs, which was agreed to be working time, and to and from the first and last jobs, which was not. Further, since working time and rest time are mutually exclusive concepts, and in line with CJEU case law (C-303/98 Simap) rest time must not involve obligations vis-à-vis the employer, the travel time had to be working time.

The recommendation of the Advocate General is not binding, but it is usually followed by the ECJ.

CIPP comment

A reminder to employers, as HMRC continues to pursue National Minimum Wage compliance, to ensure all employees’ hours are taken into account when completing your NMW checks. This ruling could also have an impact on the Working Time Directive, especially for those already sailing close to the wind and have not opted out of the 48 hour working week.