A recent opinion from the European Court of Justice (the “ECJ”) could herald higher costs for European businesses which employ mobile workers.
The opinion was given by the Attorney General of the ECJ in a case concerning security technicians in Spain (Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL). The technicians had no fixed place of work, and each day their employer instructed them to attend various customers’ premises. They brought claims asserting that their time travelling both from home to the first customer premises of the day, and from the last customer back home, was working time under the Working Time Directive and the Spanish law implementing it. Their employer had treated their working time as beginning when they arrived at the first customer, and ending when they left the last – but did not include the first and last journeys of the day from and to home.
The Attorney General's view is that such journeys should be considered working time, on a number of grounds. For peripatetic workers, travelling is an integral part of their duties. The technicians were at their employer’s disposal during the travelling time; for example they could be required to undertake an additional customer visit at the end of the day. Unlike a worker with a fixed base, they had no ability to limit or control their travelling time, for example by choosing to live near work, because their employer dictated their itinerary daily. Fundamentally, the purpose of the Working Time Directive is to protect workers’ need for rest from work. In these circumstances, these travelling periods could not be considered “rest time” and so, in the Advocate General's opinion, they are clearly working time.
What does this mean for employers in Europe?
For a number of jurisdictions in the EU, including the UK and Spain, this could herald increased costs for employers. Although this is only an opinion at this stage, such opinions are frequently followed by the ECJ itself; if so, this would constitute a binding ruling.
Employers of mobile or peripatetic workers, such as delivery, care or maintenance staff who do not attend a base location but travel as part of their work to a number of different locations as their employer dictates, would need to include journeys at the start and end of each day in measuring working time. This could trigger a number of additional obligations for such employers, such as:
- additional rest breaks for the mobile workers to reflect their longer “working day”, potentially entailing the need for more staff to pick up any slack;
- increased pay obligations, depending on the terms of the workers’ contracts, or if the additional “working” hours push staff below minimum wage thresholds.
The precise impact of this will vary across EU countries, depending on how they have implemented the Working Time Directive. Pending the final ruling from the ECJ, European businesses who employ peripatetic workers should review their working arrangements and contracts to identify any issues and seek advice if necessary. This may not affect all mobile employees, for example those who attend a fixed base each day, but could be significant for those who do not.
We will keep you updated.