Care worker travel time to the first and last appointment is "working" time

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

The European Court of Justice (ECJ) has held that the time spent travelling between their home and the customer's or client’s premises for "mobile" workers (i.e. workers who do not have a fixed office) is considered to be part of the working day.

The case, Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (C-266/14), involved a Spanish-based security system installation company which treated the first and last journey of the day made by its technicians, to and from their homes, as "rest time" under the Working Time Directive. The ECJ held that this travel was "working time" because the workers were carrying out their activities or duties and were "at the employer's disposal".

Who does this affect?

The ruling will affect care workers who habitually travel from their homes to visit different patients in their homes.

What does this mean? What will it cost?

The case does not relate to pay or remuneration – however, it does affect the calculation of working hours under the Working Time Regulations (WTR). Under the WTR employees are restricted to a maximum 48-hour working week (unless they have opted out of the WTR).

• As a consequence of this ruling the travel time of mobile workers should be taken into account when calculating their working hours for the purposes of the 48-hour working week limit and rest breaks.
• Employers who haven’t opted out of the working time limit, or who are not prepared to, may be in breach of the WTR.
• Going forward this could have a commercial impact on the amount of patients a worker can see each day/week, depending on the travelling time involved.

On the face of it, the case does not directly affect employer costs. However, it may also mean that mobile workers will seek an increase in pay. The case may be ammunition for employees or trade unions to challenge employers who pay the national minimum wage (or "living wage"). Under the UK's National Minimum Wage Regulations 2015, travel from a worker’s home to their place of work or assignment does not qualify for the national minimum wage. It remains to be seen whether, given the ECJ’s decision, trade unions exert pressure on the Government to change its position on this.

What action should you take?

• Identify which parts of the business and which workers this might impact.
• Consider whether the employees who are affected have signed working time opt-outs. If not, invite them to opt out.
• Consider whether your mobile workers are entitled to be paid for the additional hours.

What does their contract say?

• Consider where you are sending employees at the start and the end of the day – try and make assignments that start and finish near employees' homes to reduce the amount of travel time.
• Keep a watching brief for any UK developments on this issue. We expect there will be some.