A topic that is not usually one that causes much concern within the Employment and HR arena is that of time travelling to work being counted as working time.
However, Advocate General Bot has, in the case of Federacion de Servicios Privados del Sindicato Comisiones Obreras, suggested that those who do not have an habitual place of work i.e a fixed location of work will be able to class as working time the time spent travelling from their place of residence to the first customer of the day and from their last customer of the day back to their place of residence.
The Advocate General has clarified that there are three conditions to satisfy before this can take effect:-
- Being at the workplace
- At the disposal of the employer
- Engaged in work duties
Therefore, in circumstances where workers are required to travel such that it becomes an integral part of their job the Advocate General decided that the workplace cannot only be construed as a place where individual performers work at the client’s premises.
The next part to consider is that if you are at the disposal of the employer then those who travel on a schedule of work to different customers, could, at any point during that day, be re-routed by the employer upon instructions at any given time. Therefore they remain throughout the say at the disposal of the employer.
Finally, as with the first point, with travel being an integral part of the work, then an employee will be regarded as being engaged in work duties and therefore fulfil all three of the considerations raised by the Advocate General.
The key point here is that the Advocate General has not made a distinction between travel undertaken during the working day from a static place of work to a customer and that of employees who do not have a permanent place of work and who travel to a number of customers.
For all intent and purposes they are effectively treating the employee’s home as their main place of work from which they travel to each individual client to perform their work duties.
Finally this is only an Advocate General’s opinion which will need to be considered by the European court of Justice, however it is usually case that the Advocate General’s opinion is followed. It will be then for the UK Courts and Tribunals to then interpret such a ruling particularly in respect of the working time regulations.
If you wish to discuss this matter any further please contact one of our Employment Law Solicitors who will be happy to discuss this new development.