Yes – according to a recent decision of the European Court of Justice (ECJ), time spent by a worker travelling from home to their first appointment and likewise from their last appointment to home, will now constitute “working time”.
Darryll Thomas, Associate in the Employment Team, reports: “The ruling only applies to ‘mobile workers’, a concept that the ECJ defined as those who have no fixed place of work. It does not apply to office workers and their usual commute to and from home. There are many workers in the UK, however, who travel to and from customer sites and do not have a fixed place of work. The ramifications of the decision are quite significant”.
The position up to now has been that such time does not count as working time and this is expressly set out in the Working Time Regulations 1998.
So what does this mean in practice for employers?
Essentially it means that employees that fall within this category will be working longer hours than initially given credit for. This may be enough to push the average hours of some employees beyond the 48 hour weekly threshold. Unless such employees have signed an opt out from the 48 hour maximum weekly limit, employers will be left exposed to fines and penalties under the Working Time Regulations.
The other aspect to this decision relates to wages. This is a decision solely in relation to the definition of working time under the Working Time Regulations. It has no bearing on wage calculations under the National Minimum Wage Act and its definition of working time, which currently excludes travel time. It may well, though, only be a matter of time before this legislation catches up. Therefore, employers should check that working further hours does not mean that wage rates reduce to below current rates under the National Minimum Wage Act.
Significantly, if employees are working longer hours, they could potentially seek an increase in their wages under their employment contracts to reflect the additional hours worked. Take, for example, care staff who travel to different clients and often work on a time sheet basis by which they request payments for the exact hours worked each week. They could quite legitimately start their working day when they leave home and end it when they arrive back home. This could realistically add significant further hours per week to their time sheet.
If you would like to discuss any issue or query arising from this update please contact Darryll Thomas or your usual contact in the Employment team. Alternatively email us at [email protected]