Working Time Directive

Mobile workers’ journeys to and from work count as working time – ECJ ruling

This ruling has just been made by the European Court of Justice (ECJ) and was confirmed last week on the 10^th September 2015. It states that journeys made by mobile workers must count as working time.

An article by Jo Faragher on 10 Sep 2015 in Personnel Today states that the ruling could have significant implications for companies that employ mobile workers who spend a lot of time travelling between appointments.

Working time resources

The decision on the case of Spanish security system installation company Tyco Integrated Security SL followed the Advocate General’s opinion on the case earlier this year.

It concerns Tyco’s technicians, who use company vehicles to travel to appointments across Spain. The employer has argued that the first journey of the day (from home to the first appointment) or the last journey of the day (from the last assignment to home) do not count as “working time”. Instead, they regard this travel time as rest time under the Working Time Directive.

The technicians brought a claim, and the Spanish courts referred the case to the ECJ to consider whether the travel time at the start and end of the day was officially working time.

The Court ruled: “Where workers, such as those in the situation at issue, do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the directive.”

It said that not taking the journeys into account would mean Tyco could claim that only the time spent actually installing and maintaining security systems was within the concept of “working time”. It stated that this would jeopardise the health and safety of its workers.

The ECJ added that, because the workers are “at the employer’s disposal” for the time of the journeys, they act under their employer’s instruction and cannot use that time freely to pursue their own interests.

Chris Tutton, an employment partner at Irwin Mitchell, said that the ruling could mean employers will have to ask staff to opt out of the Working Time Directive’s 48-hour working week.

He explained: “Many UK companies do not consider travel time outside normal working hours as working time, but now that the ECJ has said that it should, thousands of companies may need to make changes, for example, by ensuring that assignments at the start and end of the day are near employees’ homes, adjusting working hours generally or asking employees to opt out of the 48-hour working week.”

“If they don’t, employees could quickly exceed the number of working hours that they are legally allowed to work and bosses could therefore soon find that they are operating illegally and at risk of facing costly claims against them.”

Graham Richardson, legal director at Bond Dickinson, said: “Although the ECJ’s decision relates to a claim in the Spanish Court, the case concerns the EU Working Time Directive, on which the Working Time Regulations in Great Britain are based, so the impact on British employers and peripatetic workers could be substantial.”

He added that the ruling could have significant implications on the maximum working week and rest breaks for such staff. “Employers engaging peripatetic workers that may be particularly affected include, for example, employers in the care sector and employers of staff whose primary duties are to carry out customer or client visits which may include, for example, travelling sales representatives and domestic heating engineers,” he added.

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Our current blog discusses updates in Employment Law:

New employment tribunal awards announced

The Government has revealed the new maximum employment tribunal awards to take effect from 6 April 2018, and the Supreme Court hears Pimlico Plumbers’ latest appeal in its long-running employment status case.

The Supreme Court heard Pimlico Plumber’s latest appeal to the finding that one of its plumbers was a worker, and not self-employed as he had been held out to be. Charlie Mullins, owner of Pimlico Plumbers, has called for ‘clarity’ from the Supreme Court. One of our previous blogs discusses the difference and can be found by clicking here.

Unfair dismissal compensation to increase

The Government has confirmed that the maximum compensation award in unfair dismissal claims will increase to £83,682 (or a year’s pay, whichever is lower) from 6 April 2018.

Matthew from Consensus HR comments “Companies should always ensure that they follow the correct procedures when dealing with employee issues in their business such as using the Acas Code of Practice and any action taken is ‘reasonable’ & ‘fair’. This should be in a businesses Contract of Employment or Company Handbook and be part of a companies everyday culture & management style.”

Employers “decades behind” law on pregnancy in the workplace

A third of employers believe it is acceptable to ask a female interviewee in a job interview about her plans for having a family, research from the Equality and Human Rights Commission (EHRC) has found. EHRC’s new campaign, “Working Forward”, aims to educate employers on basic discrimination laws in order to combat what CEO Rebecca Hilsenrath called “depressing” findings.

Matthew from Consensus HR comments “We find it extremely hard to believe that employers still believe it is ok to ask such discriminatory questions when interviewing but when talking to SME’s with a very small workforce understand the issues that can occur should an employee be absent from work for a long period. This is why we work with our clients to ensure that the correct measures are taken to ensure minimum impact to the business such as recruiting a fixed term member or developing a member(s) of the team to cover the duties whilst the employee is absent. A member of a well formed team getting pregnant should be celebrated and managed accordingly when they are informed of a pregnancy.”

Case law

On referral from the Belgian courts, the European Court of Justice has found that time spent by a worker on-call at home was to be regarded as working time for the purpose of the Working Time Directive. The key element was the restriction placed on the worker by the employer and not his location.

Matthew from Consensus HR comments “This is an area we have had to deal with quite a lot lately with employers not realising when somebody should be getting paid if they are on call or a mobile worker following recent cases. The Working Time Directive covers many areas and this is just one of them with hours worked another.”

Netflix says unlimited parental leave will mean employees are not worrying about home life when they are at work.

Streaming service Netflix is offering all its employees in the US and Canada unlimited parental leave in the first year following the birth or adoption of a child.

Netflix said the policy, which is effective immediately, lets employees “have the flexibility and confidence to balance the needs of their growing families without worrying about work or finances”.

The company also hopes it will lead to better performance.

“Experience shows people perform better at work when they’re not worrying about home,” it said on its corporate blog.

“This new policy, combined with our unlimited time off [the company does not have a limit on how much holiday workers are entitled to], allows employees to be supported during the changes in their lives and return to work more focused and dedicated.”

During the year after they become parents, workers can return part-time or full-time, or come and go for periods of time.

They must discuss with managers how to cover their workload in their absence.

This is an interesting article, especially as Shared Parental Leave has been introduced to the UK this year, (see our earlier blog). It shows how Netflix believes that unlimited parental leave will benefit their business.

Some businesses now believe that they should not have a set standard for holiday entitlement as is currently determined by the Working Time Directive.

It will be interesting over the forthcoming years to see how many more organisations remove the mandatory set standards and adapt all types of leave to suit their business and the benefits / problems that occur.