In short, no. In the UK, travel time to and from a worker’s home is excluded from ‘working time’ under the National Minimum Wage Regulations. However, in a case from 2015 the European Court of Justine (ECJ) decided that, where a worker has no fixed or habitual workplace, time spent travelling between their home and the premises of their first and last customer should be classed as ‘working time’ for the purposes of calculating appropriate rest periods under the Working Time Directive.
This is because during these journeys, workers are acting on the instructions of their employer and are not able to use their time freely i.e. they are at their employer’s disposal. The ECJ also commented that since the place of work varies daily according to customer appointments, arranged by the employer, affected workers have no control over the distance and travel time between their homes and their place of work. This means that the necessary travel time cannot be regarded as a rest period, as it has been previously.
What impact does the decision on travel time have on your business?
It’s important to note that this recent clarification only applies to workers who are not assigned to a fixed or habitual place of work. This ruling will not therefore change anything for workers who attend at the same office each day (or one of several offices), nor will this apply to workers who are seconded to a particular client site as their place of work is fixed, albeit for a defined period of time.
It is essential therefore to recognise that this case is about the Working Time Directive, it is not a case which is about the National Minimum Wage.
The Working Time Directive is about ‘the improvement of workers’ safety, hygiene and health’. It lays down minimum health and safety requirements. It introduced minimum requirements to improve the living and working conditions of workers and was always intended simply to guarantee better protection of the safety and health of workers within Europe.
Over and over again the Directive emphasises that it relates to the health and safety of workers and not to their pay.
The UK government voiced concern in this case and argued that if travelling time was classed as working time, this would dramatically increase costs for employers. This argument was rejected by the court. It pointed out that determining whether travelling time was working time was absolutely nothing to do with pay or remuneration. Indeed it went further to say that the employer ‘remains free to determine the remuneration for the time spent travelling between home and customers’. The case furthermore makes it clear that ‘it does not apply to the remuneration of workers’ and that the Working Time Directive does not have anything to do with the method of remunerating workers.
The ECJ commented that employers are permitted to put monitoring processes in place to ensure that workers are properly recording their commute times. Employers are also permitted to require workers to take the most direct route possible in their journeys between home and their first and last customers of the day. If however you currently have a mobile workforce or are looking to move towards a flexible working model, you need to consider the following:
- Workers cannot work more than 48 hours a week on average (normally averaged over 17 weeks), unless they sign an ‘opt-out’ agreement. This is effectively their agreement to work over and above the 48 hour maximum.
- If your workers have not signed an opt-out agreement and the inclusion of their journeys to and from work could take their working hours over the 48 hour maximum, you should consider asking your employees to sign one.
- A worker is entitled to at least 11 hours of rest in any 24 hour period. The inclusion of journeys to and from work may mean that workers are not enjoying a full 11 hours rest break between each working day.
- A worker is also entitled to one uninterrupted 20 minute rest break during their working day if they work more than 6 hours a day. Again you may need to consider offering your workers additional breaks if their travel time takes them over the break limits.
When discussing this case it is essential to create a very wide divide between what is classed as working time and what people are paid under the terms of their contract of employment. This case does not change that.
It is equally important to appreciate that the wording of the Working Time Regulations 2015 excludes travelling time from any calculation of whether an employee is or is not receiving the National Minimum Wage. Whether the government introduces any change to those Regulations is simply a matter of debate.
For more information on these issues or any other employment matters, please contact our Employment Law & HR team on 0161 475 7676.