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Supplier news | Published 15/01/2016

What constitutes working time?

A recent European Court of Justice (ECJ) ruling on travel time to and from work has raised a number of concerns about a possible impact in the UK, although the case itself relates to a group of workers in Spain. Cloudfm’s legal advisors have provided us with advice, which we are happy to share with you to aid understanding of the position.

The base position is that time spent commuting would not usually be viewed as working time, and this has been applied across the UK. The employer has no control over how long the worker spends commuting as this will depend on where the employee lives. The worker is, as a general rule, not at the employer’s disposal until they reach the workplace. Therefore, even if the worker uses some of their daily commute to carry out work-related activities such as making telephone calls or reviewing documents, the time would still not generally be treated as working time.

The current legislation does not prescribe the extent to which travel to a place other than a normal workplace or base can count as working time if the journey begins or ends at the worker’s home. The ECJ addressed the issue and held that for mobile workers who are not assigned to a fixed place of work, the time spent travelling from their home to their first assignment, and from their last assignment back to their home, should constitute working time.

The impact on working patterns

For employers of mobile or field workers, the key issue raised is whether they have to change their existing working patterns in order to comply with the restrictions on working time under the Working Time Regulations.

The first key restriction under the Working Time Regulations is the average weekly working time limit of 48 hours per week, typically calculated over a reference period of 17 weeks. Unless the worker has opted out of this limit, employers have an obligation to take reasonable steps to ensure that this limit is observed and to keep and maintain records to show compliance with the limit over the previous two years. Breach of these obligations is a criminal offence, and the employee can decide to cease work.

Without an opt-out, the mobile worker’s employer faces a number of challenges. Assignments have to be allocated so that the average weekly working time limits are not exceeded when travel time to and from home is factored in. The worker needs to keep accurate records of start and finish times each day. Delays caused by significant travel disruption introduce another variable to be taken into account. Work scheduling and allocation could become more difficult.

Opt-out agreements are the key method of avoiding these problems. They also remove the obligation to keep records of daily working time. However, workers do have the right to refuse to opt out or to opt back in on at least three months’ notice.

Another key provision of the Working Time Regulations is the entitlement to a daily rest period of 11 hours. In theory, this means that a mobile worker returning home at 8 pm could not be required to set off the next day before 7 am. However, this is an entitlement which workers can waive and employers do not have a strict obligation to enforce these rest periods.

No automatic right to pay

Importantly, this decision does not automatically mean that mobile workers are entitled to be paid for time spent travelling between home and customer sites. The Working Time Regulations do not require working time to be paid. Pay is an entirely separate issue governed by the national minimum wage legislation and the contract of employment.

Under the National Minimum Wage Act 1998 and the Working Time Regulations, the general position is that travel time between home and a place of work, including for mobile workers, is excluded from the obligation to pay the national minimum wage. That is also backed up by case law.

If you have any questions or would like to discuss this topic further, please contact SupplyChain@CloudfmGroup.com

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