Not overstating the significance of Tyco

In recent times, employers have received new decisions from the European Court of Justice (CJEU) with all the joy and many of the painful financial consequences of an unanticipated credit card bill. CJEU decisions on holiday pay, for instance, have spawned huge numbers of tribunal claims and presented large employers with very substantial prospective and historic liabilities. Employers may be forgiven, therefore, for flinching reflexively on hearing that the court has had something new to say on the subject of working time.

The case of Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL C-266/14 (Tyco) concerns a business that installs and maintains security systems. Its business was divided into regions. Within each region, a peripatetic workforce travels to customer sites to provide services. Until 2011, each region had a regional office. Workers would travel first to the regional office and then on to their first customer assignment. Tyco treated the journey from regional office to customer premises as working time. The journey from home to the office, in contrast, was not treated as working time. The regional offices were abolished and thereafter the workers travelled to their first assignment directly from home. Tyco did not treat that journey as working time. Whether they should have done was the question posed to the CJEU.

The relevant European legislation is the Working Time Directive 2003/88/EC. It regulates working time by, among other things, specifying minimum rest periods and a maximum working week. ‘Working time’ is defined by article 2 as follows: ‘“working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.’

The court decided that the journey to the first customer’s premises was, indeed, ‘working time’. The court seems to have been strongly influenced by the fact that the journey from base to customer had formerly counted. It would not be right for the abolition of the regional offices to result in reductions to the workers’ resting time. The only material difference, they found, was that there was a change in where the journey began.

Impact on UK employers

The Working Time Directive is implemented by the Working Time Regulations 1998. The regulations must, so far as is possible, be interpreted consistently with the directive. If a UK employer has a workforce that does not have a ‘fixed or habitual place of work’, the time spent by workers travelling between their home and the premises of the first and last assignments of the day will now constitute working time. 

Affected employers will have to ensure that time spent on such journeys is taken into account when calculating entitlement to rest breaks and the daily and weekly rest entitlements provided for by the regulations. Where an employee has not opted out from the maximum working week, the journey time will, similarly, count towards the 48-hour limit prescribed by regulation 4. Some employers have expressed a concern that it creates a perverse incentive for employees to move further away from the area in which they work. However, that danger may be reduced either by reassignment or by requiring new recruits either to live within a reasonable distance or else to sign an opt-out agreement.

It is important not to overstate the significance of the case. It does not mean, for instance, that commuters should be treated as working while doing their morning Sudoku on the 7:15 to Waterloo. It is a case concerned with workers without a fixed or habitual place of work: it does not establish a general rule that you should be paid to travel to and from work.

Another concern expressed by employers is that the Tyco decision might mean that they will have to start paying wages to cover the time spent on journeys to and from home. Employers will certainly need to review their contract terms carefully. However, the court was clear that the question of remuneration was a matter for the law of the member states and not the directive. It is reasonably clear that the National Minimum Wage Regulations 2015 do not have the effect of requiring peripatetic workers to be paid when travelling to and from work, as there are specific provisions which require that travel between home (or a place where the worker is temporarily residing) and the workplace be disregarded for the purposes of determining whether the national minimum wage has been paid (see regulations 27(1)(c), 34(1), and 39(1)). 

Even if the court had insisted that their decision should impact remuneration, the 2015 regulations do not implement a European measure and do not have to be given a conforming interpretation.

Sean Jones QC is an employment barrister practising from 11KBW @seanjonesqc www.11kbw.com 

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