Travelling to and from work – Advice for employers

A decision handed down by the European Court of Justice on September 10 means that time spent travelling to and from a place of work should now count as working time for some employees.

The ramifications of this decision could be considerable for UK employers, many of whom will need to review working practices and hours as a result.

Here’s a quick Q&A with Harrison Drury’s Employment team, about the changes.

What’s prompted this decision?

The ruling was made following a case in Spain (Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another) in which the court considered whether Spanish employees who did not have a fixed place of work could be said to be working whilst they travelled from home to their first appointment of the day and home again from their last appointment.

Their employer did not class this as working time, even though the employee could be required to travel substantial distances each day to reach their first appointment or to return home.

The court concluded that this time did count as working time for the purposes of the Working Time Directive. The fact that the order of appointments was decided by the employer, not the employee, seems to have been a relevant factor in the decision, as well as the fact that the travelling was an integral and necessary part of the employee’s role.

Why does a Spanish case affect my business in the UK?

This is because Britain is a member of the EU and is often bound by decisions made in EU courts, such as those relating to working practices and working hours. The UK government did oppose the ruling, but the court rejected the UK’s argument that the decision would increase costs for employers. The court took the view that it was up to employers to decide remuneration for travelling time and this was not affected by the Working Time Regulations.

Does this mean I now have to pay all my employees for time spent travelling to and from work?

No. It’s worth clarifying that this affects mainly employees who do not have a fixed place of work, for example care workers or sales staff, who travel direct from home to their first appointment at a client’s premises and then straight back home again after their last appointment. For many employees with a fixed place of work the rules remain the same and their daily commute will not be affected by this decision.

What about employees on the National Minimum Wage. Does travel time now need to be applied?

This is one of the reasons the decision has been criticised by the UK government. Many other European countries don’t have a minimum wage, but in the UK the travel time ruling will now be deemed to apply to those on the National Minimum Wage. This has the potential impact that thousands of employers may be underpaying their employees for their total working time, once their travel time to and from their first and last places of work is taken into account.

What action should I be taking now as an employer in light of this ruling?

You should check company pay rates for all employees to determine the potential impact, particularly for the payment of those on the National Minimum Wage. As many travelling employees are salaried, you can work out the nominal hourly rate for the usual hours worked, plus the additional travelling time. You may find you are still paying above the minimum requirement and so will not be in breach of minimum wage legislation.

What other practical steps should I be taking to protect my business?

You will want to minimise travelling time for affected employees. It may be possible to identify the location of each visit to be carried out each day and ensure the locations nearest to an employee’s home are allocated as the first and final appointments.

If you have a number of sites across a region or country, you might wish to consider requiring employees to start work from the company’s premises each day, rather than from home. Whilst this might not be feasible for a lot of employers, having employees ‘check-in’ at a place of work each day will take the time spent travelling to and from work out of the working time calculation.

 If you would like to know more about how this ruling on travelling to and from work impacts your business, or would like advice on any other employment law matter, please contact the Employment team on 01772 258321.

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