Does your daily commute count as working time?


By Jason Galbraith-Marten QC

In Whittlestone v BJP Home Support Limited [2014] ICR 275 the EAT held that for those without a permanent place of work, time spent travelling between assignments counted as ‘time work’ for the purposes of the National Minimum Wage Regulations 1999. In Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL the CJEU has, in a judgment published today, held that time spent travelling between home and the first and last assignments of the day counts as ‘working time’ for the purposes of the Working Time Directive.

Tyco installs and maintains security systems. In 2011 it closed all of its regional offices and attached all its employees to its central office in Madrid.

Before that decision Tyco regarded travelling time between a regional office and the premises of a worker’s first and last customers of the day as working time, but not the time spent travelling between home and the regional office at the beginning and end of the day. As a result of its decision to close the regional offices workers no longer attend an office at the start and end of each day but travel directly to and from customers’ premises. However Tyco does not count the time spent travelling between home and customers’ premises as working time, regarding it instead as ‘rest’ (‘work’ and ‘rest’ being mutually exclusive see Jaeger C‑151/02 and Dellas C‑14/04; the directive does not provide for any intermediate category between working time and rest periods).

On a reference for a preliminary ruling by the national court, the CJEU noted the observation of the Advocate General in his Opinion that travelling is an integral part of being a worker without a fixed or habitual place of work and stated that this is not affected by the fact that workers in this situation begin and finish such journeys at their homes. The court stated:

‘It follows from the foregoing that, where workers in circumstances such as those at issue in the main proceedings use a company vehicle to go from their homes to the premises of a customer designated by their employer or to return to their homes from the premises of such a customer and to go from the premises of one customer to another during their working day, those workers must, when they make those journeys, be regarded as ‘working’ …’

The rationale for this is that during the necessary travelling time ‘workers are not able to use their time freely and pursue their own interests, so that, consequently, they are at their employer’s disposal’. This was said notwithstanding the fact of the workers at issue ‘remaining free to get there via the route they wish, with the result that they can manage their travelling time as they see fit.’ It is hard to see how, as a matter if principle, this would not also apply to workers travelling to and from a fixed place of work.

However, and rather confusingly, the fact that time spent travelling to and from a work assignment (or even a fixed place of work) might now count as working time does not mean that the employer is obliged to pay for it. As the CJEU reminds us at para. 48 of its judgment, the Working Time Directive is limited to regulating certain aspects of the organisation of working time and, generally, does not apply to the remuneration of workers, which is left to any relevant provisions of national law. By virtue of reg. 15(2) of the National Minimum Wage Regulations 1999 time travelling between a worker’s home and his place of work or any place where an assignment is carried out does not count as ‘time work’ for the purposes of that regulation.