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When Are We Working?

A recent case has been referred to the Court of Justice of the European Union, asking when employees are working. This case specifically looked at the issue of travel and work, and there are some important points to note.

The case (Federación de Servicios Privados del sindicato Comisiones Obreras [2015]) concerned employees who installed security systems. Each day they would receive a job list from the employer, and then they would drive to the first job, do the work, move on to the next, and when all the jobs were done they would drive home. Their employer did not agree that travelling to the first job, and travelling home from the last job, was working time.

We now have the opinion of the Advocate General in this case (the Court of Justice does not have to follow this opinion, but usually does). The opinion is that travelling to and from these jobs is working time. The Advocate General has said that working time is when the employee is at the workplace, is at the disposal of the employer or is carrying out work duties. So, if an employee is travelling when is s/he working and why does it matter?

It matters for two main reasons. Firstly, there is a restriction on the working week of 48 hours, and there is also a requirement to let employees have at least a 20 minute rest after working for 6 hours and an 11 hour rest in every day. If the working hours are being calculated incorrectly this requirement might not be met. Secondly, there is a requirement to pay at least the National Minimum Wage for each hour worked. Again, if the working hours are not calculated correctly it is possible that the correct payment is not being made.

An employee is not working when:

  • Travelling to and from the usual place of work. In the case we have just looked at there was no usual place of work. However, most employees are based at one location and it is not counted as work when they are commuting to and from that location.

However, the employee is working when:

  • Travelling to and from the usual place of work. In the case we have just looked at there was no usual place of work. However, most employees are based at one location and it is not counted as work when they are commuting to and from that location.
  • Travelling between appointments once the working day has started. For example, a Sales Representative travelling to meet a number of clients is working whilst travelling from one client to the next.
  • Travelling to a work location if the employee usually works from home.
  • It gets more complicated if an employee is usually based at one of your locations, but is working somewhere else for the day – maybe attending a business meeting. In this situation you should calculate the time that it usually takes the employee to travel to work, and compare this with the time it takes the employee to travel to the meeting. If it takes longer to travel to the meeting the employee is working for this additional time.

So, now it must be time to get to work...

Kathy Daniels is a Senior Teaching Fellow at Aston University. She lectures in employment law and employee relations, and also runs her own business writing about employment law issues.

k.daniels1@aston.ac.uk

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