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Time that workers without a fixed workplace spend travelling to and from their first and last appointments should be regarded as working time, Europe’s highest court ruled Sept. 10, 2015.
So if a plumber, home care worker or sales representative has to travel for two hours to get to his or her first job in the morning, that driving time should count as part of the working day and be paid accordingly, according to the Luxembourg-based European Court of Justice (ECJ). The same is true for the ride home.
The ruling is effective immediately and applies to all 28 nations in the European Union (EU). It does not, however, impact workers with long commutes to fixed workplaces.
This time had not previously been considered to be working time by many employers in the EU, according to Allie Renison, head of EU and trade policy at the United Kingdom’s Institute of Directors, a business group.
Ruling in Spanish Case
A case was brought by a Spanish trade union against Tyco, a multinational fire and security company, which closed its network of regional offices in Spain in 2011. After the office closure, staff began the workday at their homes, and would travel to install security systems, with the first appointment of the day sometimes a three hours’ drive away. This travel time was being treated by the company as a “rest period,” the judges noted.
The court ruled that this was unfair, as Tyco had previously viewed the start of the working day as being the moment staff arrived at their regional office, from where they were given a list of appointments for the day.
The judgment said: “During the necessary travelling time—which generally cannot be shortened—the workers are therefore not able to use their time freely and pursue their own interests. The fact that the workers begin and finish the journeys at their homes stems directly from the decision of their employer to abolish the regional offices and not from the desire of the workers themselves.”
Making staff “bear the burden of their employer’s choice” could be contrary to the EU’s working time directive, which lays down rules on rest periods and limits the maximum working hours to 48 per week, the court said.
Ramifications Could Be Significant
“This ruling will surprise and concern many U.K. businesses,” Renison said.
“The notion that the period mobile workers spend travelling between home and their first client in the morning must count as working time goes above and beyond the protections intended by the law.”
And the ramifications of the decision could be substantial. “The decision has immediate application and employers have no choice but to comply,” Suzanne Horne, an employment lawyer at global law firm Paul Hastings in London, said. “Aside from the salary costs, there are additional questions about how this impacts an employee's entitlement to daily rest breaks and the 48-hour maximum working week, as well as other employer liabilities, such as travel expenses,” she added.
Dave Prentis, general secretary of the Unison union in London, said the ruling was “bound to have a significant impact in the U.K., particularly on home care workers. Tens of thousands of home care workers are not even getting the minimum wage because their employers fail to pay them for the time they spend travelling between the homes of all the people they care for. Now, thanks to this case, they should also be paid when they are travelling to their first visit, and again back home from their last,” he added.
Joanne Deschenaux is SHRM’s senior legal editor.
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