Travelling and working time
Labour & European Law Review Weekly Issue 442 21 October 2015
The Working Time Directive defines “working time” as any period when the worker is working, at their employer’s disposal and carrying out their “activity or duties”. The Court of Justice of the European Union (CJEU) held in Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor that for mobile workers it also includes time spent travelling to and from the premises of customers at the beginning and end of the day.
In 2011 Tyco decided to close all its regional offices in Spain and assigned its employees to the central office in Madrid. Up until that date, the company’s technicians started their working day when they arrived at the relevant provincial office to pick up the vehicle they were to use and receive the list of customers to be visited and the task list. Likewise, it ended when they returned in the evening to leave the vehicle back at the office.
After the closure of the offices each worker was provided with a company vehicle to travel from their homes to the premises of the first customer, which could involve distances of more than 100 km. They used the same vehicle to return home at the end of the day.
The company decided that their working day now started when they arrived at the premises of the first customer and finished when they left the premises of the last customer. The company argued that the technicians could not be said to be carrying out their “activity or duties” of installing and maintaining security systems when they were travelling to the premises of the customers designated by the company.
The Spanish court asked the CJEU to decide whether the definition of “working time” in article 2 of the Working Time Directive 2003 included time spent travelling to and from the premises of customers at the beginning and end of the day by a mobile worker.
Decision of the CJEU
The Court noted that it was not disputed that Tyco had previously treated travelling time between the regional offices to the first and last customers as “working time”. Moreover, the nature of the journeys had not changed, just their departure point.
The Court held that, in order to be regarded as being at the employer’s “disposal” during travelling time, workers were legally obliged to obey the instructions of their employer and carry out the “activity” for that employer during that time. Conversely, if they were effectively free to manage their own time, they could not be said to be at their employer’s disposal.
In this case, Tyco decided the activity, the list and order of the customers and the times the technicians had to visit them. Although the workers did not have to keep their mobiles switched on when travelling between home and the first customer, the situation was the same as before the closure of the regional offices. The Court concluded that, as the technicians could not use their time freely and could not pursue their own interests when travelling to visit the first customer or returning from the last customer, they were at their employer’s disposal.
It followed that in the particular circumstances of the mobile workers time spent travelling each day between their homes and the premises of the first and last customers designated by their employer constituted “working time”.
The decision clarifies the circumstances when travel time amounts to working time for mobile workers who have no fixed workplace. However, as the case was referred to the European Court for an interpretation of working time under the Working Time Directive the Court did not determine the issue of pay.