By Sally Cowen
The Advocate General gave an opinion last week, stating that the time taken by peripatetic employees travelling to and from their first/last appointments to home should have that time considered as ‘working time’ under Article 2 of 2003/88/EC Directive (Federación de Servicios Privados del sindicato Comisiones Obreras Case C-266/14).
The facts arose from security system engineers in Spain. The company closed their regional offices, in favour of one central office in Madrid. This meant that employees used company vehicles to travel to jobs at appointed locations within their geographic area of cover, from their homes. The company did not count the first journey (home to first job) or the last journey (last job to home) as working time. Instead it was counted during ‘rest hours’.
The AG pointed out that the essential point behind Directive 2003/88/EC is to ensure that health and safety is maintained by way of ensuring rest periods and dictating a maximum average duration of work of 48 hours per week. He indicated that ‘working time’ and ‘rest periods’ are mutually exclusive and there is no grey area in between. To therefore suggest that travelling is part of the ‘rest period’ would undermine the health and safety purpose.
The AG said that:
- As the workers must travel to clients in order to carry out their work, then the travel itself forms part of the work;
- When travelling to and from home, they are not outside the scope of their employer’s management power;
- Being at a workplace cannot be reduced to a physical presence at a location, hence when travelling, workers are ‘at work’.
This decision, if followed by the full court (and I can’t see any reason why it would not be), would have a serious impact, for example, for care workers in the UK, who travel to the homes of those they look after. Recently, there has been much publicity over such carers being told they cannot claim expenses for the miles taken to travel at the beginning and end of the day. This decision could throw a new light on that decision.
It could also have a significant impact on the number of visits each carer can make in a day, as their travel time at the beginning and end of the day may result in a reduced number of visits being made.
It is clear that whilst this decision might appear to be in the favour of the carers, it might ultimately result in a restriction in the service provided.