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Advocate General's Opinion Is That Travel Time Is Working Time

22-June-2015
22-June-2015 11:14
in Employment
by James Tunley

Case C-266/14 Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and others [2015] Opinion of AG Bot

ECJ Advocate General Bot has handed down his opinion in a recent case involving working time of travelling or “peripatetic” workers. The decision relates to the travelling time from home to the first customer or site of the day and from the last customer or site back home, for European Union Working Time Directive 2003/88 purposes. Advocate General Bot’s opinion was that this travel was to be classed as working time. Although not a binding decision, it is likely to be followed when this case is fully heard in the ECJ.

Background

This case involved a security alarm company, Tyco Integrated Security SL (“Tyco”) based in Madrid, Spain. Tyco employed workers throughout the country, who were responsible for a geographic area. The employees were given a company vehicle to travel to their customers’ premises from home, between sites and back home at the end of their working day.

Under the Tyco’s policy the travel between home and customers’ sites (and vice versa) did not constitute  working time. The employees had to travel distances of up to 100 kilometers from their homes to customers’ sites.

Under Tyco’s policy the working day was calculated from the arrival at the first customer until departure of the last customer of the day.

The employees challenged this policy in the Spanish courts, which referred the matter to the ECJ Advocate General.

The Working Time Directive

The European Union Working Time Directive 2003/88 (“the Directive”) affords employees several rights including the number of hours they can work, rest breaks, breaks between working days and holiday entitlement.

In particular, the Directive states that unless employees opt out, they can only be required to work a maximum of 48 hours per week.

The Decision

Firstly, it is important to note that Advocate General Bot’s decision only relates to peripatetic workers, those being without a fixed place of work, whose travel is integral to their work.

Advocate General Bot then applied the test for working time as laid down in Landeshauptstadt Kiel v Jaegar (2003) C-151/02, which is for work to be classed as working time under Article 2(1) of the Directive it must be: (i) a spatial criterion (to be at the workplace); (ii) an authority criterion (to be at the disposal of the employer); and (iii) a professional criterion (to be carrying out his activity or duties).

In relation to the first criterion, Advocate General Bot stated that in the case where travel was integral to work, then the travel time satisfied this.

As to the second criterion, although it was noted that there was resistance as to whether authority applied whilst employees were travelling, that in the Advocate General’s opinion they were nonetheless within the employer’s management powers.

Third, the Advocate General highlighted that the employees were travelling to customers determined by the employer and as such there was no doubt this was within their duty. Overall it was held that the specific travel time, to and from home and customers’ sites was working time under the Directive.

Ancillary to the opposition that travel time should not be considered working time, the employers submitted that employees could easily abuse the recording of their working hours, as there would be no way to tell when they left home for example, however the Advocate General rejected this argument and stated that employers should have suitable procedures in place to combat this.    

The effect of this decision

If the ECJ does in fact follow Advocate General Bot’s opinion then the implications for workers who have no fixed work place and their employers will be considerable, especially for workers with a large territory.

Employers may have to consider scheduling early and late appointments at sites close to employees’ homes.

Although the opinion only relates to workers with no fixed place of work in relation to the Directive it shall be interesting to see how this case shall apply to cases relating to travel away from fixed places of work, including workers who may be required to routinely travel across Europe, or when it is applied to a dispute over pay and/or overtime.  

 

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