What is working time?

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It is becoming increasingly common for employees not to have a fixed place of work. Many sales agents and home-based workers spend their time on the road, travelling to see customers and clients as needed.

A recent case (Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another) has helped to clarify whether time spent by employees travelling is counted as “working time”.

In the case, the employer, Tyco, closed its offices and instead instructed its employees, who installed and maintained security equipment, to travel directly from home to various locations, which could be up to 100km away. The employer would give each employee a list of locations which they had to visit in a day.

The employees argued that the time spent travelling, including the first and last journeys of the day to and from home, should be included within the definition of “working time” whereas Tyco claimed that it should not. Tyco argued that employees were able to determine the route they took and as they were not carrying out installations or maintenance during their time travelling, they were not working.

The European Court agreed with the employees. Time spent travelling to and from the customers’ premises was working time.

The Working Time Directive sets out that working time is any period during which an employee is working at the disposal of the employer and carrying out their duties in accordance with law and practice. Any time which is not working time, conversely, is defined as a rest period. As the employees were not able to use the travel time freely, the time couldn’t be said to be a rest period; the employees were subject to the direction of the employer.

So, why is this important? Working time should not regularly exceed 48 hours per week unless an employee has signed a declaration opting out of the limit. Similarly, rest breaks are calculated according to working time. Employers with mobile or home-based employees regularly exceeding 48 hours of working time per week (including directed travel) should review their practices and ensure that their contractual documentation is up to date.  Remember, an employee cannot be forced to sign a working time opt out notice so thought might need to be given to rearranging duties.

Breach of the rules on working time can give rise to claims in the Employment Tribunal as well as intervention from the HSE and / or criminal convictions and fines.

For more information on this or any other Employment issue, contact our Employment team.

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