An opinion was given in a case before the European Court of Justice (ECJ) which will interest a number of our clients who have workers who travel regularly as part of their role. The Working Time Directive (the Directive), defines "working time" as any period during which the worker is working, is at the employer's disposal and is carrying out his activity or duties. The Directive defines "rest period" as meaning any period which is not working time. The Directive is implemented in UK law via the Working Time Regulations.
Neither the Directive nor the working time directive say anything about whether travel to and from a place of work or between places of work should be considered as working time.
In the case, Advocate General Bot gave his opinion that the first and last journeys of the day should be classified as working time. He viewed travelling as an integral part of being a mobile worker, and as such a place of work cannot be reduced to the physical presence of the worker on a customer's premises. When such workers use a means of transport to go to a customer designated by their employer, they must be considered to be "at work". Equally, AG Bot noted that the travel is inherent in the performance of their activities, and is necessary in order for them to provide their technical services to customers. Such travelling must therefore be regarded as forming part of the activity or duties of those workers.
The most difficult criterion to determine was whether the workers could be said to be at the disposal of their employer during the first and last journey. In the AG's opinion, the travelling is still done within the context of the hierarchical relationship which links the worker to the employer. The journeys are subject to the authority of the employer, in that the employer can choose to change the order of customers or cancel an appointment, or require workers to call on an additional customer on their journey home. The workers are therefore at the employer's disposal for the purposes of the Directive.
This is only an opinion of the Advocate General and therefore not binding on the ECJ or the national courts and tribunals. However, opinions are usually followed by the ECJ.
If you have workers who travel as part of their role, it will be important that you may need to take into consideration their travel to and from jobs, and ensure that you remain compliant of the working time directive. If you have any questions about working time, please get in touch with a member of the employment team.