Travelling time counts as ‘working time’

In a recent case (Federación de Servicios Privados del sindicato Comisiones Obreras)­ the Attorney General (AG) has expressed the opinion that certain workers, who have no fixed or habitual place of work, could class time spent traveling from/to their home address to their first or last appointments as working time under the EU Working Time Directive.

Background

Under current law, travel between appointments or meetings is agreed to be working time - however travel from the employees’ homes to their last or first appointment is not.  The AG commented that he saw no reason to draw a distinction between the two and that both should be considered as working time. This particular case involved Spanish workers who were employed to maintain security equipment in home and business premises. The employees were assigned to the company’s central office but each had the responsibility for a particular geographical area. The employees had use of a company vehicle which they used to travel between different appointments; the employees took the vehicle home in the evenings. The company calculated working time as being when the employee arrived at their first appointment and when the employee left the premises of their last customer. Therefore the time taken to travel to and from these appointments was not deemed as working time.  The employees sought to challenge this interpretation and the Spanish national courts referred the case to the European Court of Justice (ECJ) to seek clarification of what constituted working time.

The Attorney General expressed  the opinion that in the case of  peripatetic workers (workers where travel is an integral part of their activities) where travel is a necessary part of providing service, both time travelling between appointments and time spent travelling to/from their home to appointments should be classed as working time.

He explained further that time will be classed as working time when the employee is either:

• At the workplace
• At the disposal of the employer
• Engaged in work duties

The AG gave the view that travelling time in the present cases would satisfy the above criteria because:

• Travel was an integral part of the employees’ job such that the workplace cannot only be considered as performing work at the clients’ premises
• Employees were at  the disposal of their employer during travel as the route and destination was determined by their employer and travel was required to provide services for the benefit of the employer
• The employees were engaged due to the fact that travelling was an integral part of their work

The AG rejected the suggestion that this would allow employees to carry out personal activities during working time, suggesting it was up to the employer to put in place procedures and policies to avoid any kind of abuse.

Although this opinion is not currently binding, the opinion of the AG is normally accepted by the ECJ. We will continue to monitor this case and advise further once the case is concluded.