19th October 2015
Implications for mobile workers following ECJ decision
Hewitsons’ specialist employment team works closely with the firms corporate team supporting a broad spectrum of their clients, from small start up companies to plc organisations, it also has strong links with the firms agricultural department and the recent European Court of Justice decision in the case of Tyco has been relevant to many of these clients.
Valerie Lambert, recognised by the Legal 500 Client’s Guide to the Legal Profession 2015, as a leading individual, comments on the implications of the Tyco case for UK employers.
1. What is the Tyco case about?
The Tyco case concerned workers with no fixed workplace, whose employers could choose to change the order of customers, cancel appointments, or require workers to call on additional customers on their journey to work or on their journey home. These workers argued that travel time to and from work should be classed as working time.
2. What was the decision in the Tyco case?
The European Court of Justice (ECJ) held that for workers with no fixed or habitual place of work, travel time to the first customer of the day, and travel time home from the last customer, should count as “working time” for the purposes of the Working Time Directive.
3. The Tyco case hit the headlines in the UK in September, the Guardian reporting that “Large numbers of workers could be entitled to more pay or a reduction in hours after the European Court of Justice rules that travel to and from some jobs could be counted as part of a working day.” How has this case affected employers whom you act for?
The reference to pay in the Guardian report is a red herring. The decision relates the Working Time Directive, which is health and safety legislation rather than legislation relating to the work/wage bargain. The biggest impact on our clients is that they will have to ensure that workers get adequate rest breaks, in line with the UK working time parameters and also that they do not exceed the 48 hour working week, although workers can opt out of the 48 hour working week. Subject to the National Minimum Wage legislation employers are free to determine pay for travelling time which should be provided for within the workers’ contracts. There is however an ongoing debate about the calculation of the national minimum wage for mobile workforces, an issue which is now the subject of separate litigation.
4. Do you have any advice for employers in light of the Tyco decision?
UK employers remain bound to comply with the Working Time legislation so it may be that employers have to reorganise the order of their worker’s calling points or perhaps remove appointments. Routes will need to be planned in a time efficient manner. If a worker is assigned to a designated area, possibly a sales person, it may be prudent to apply contractual criteria that they do not move out of that designated area. It may also be sensible for employers to implement monitoring procedures to guard against potential abuse of workers conducting personal business during their first and last journeys.
A version of this article appeared in Cambridge News on 20.10.2015. http://www.cambridge-news.co.uk/Smarter-planning-key-wake-Tyco-mobile-working/story-27998240-detail/story.html