Travel Time as Working Time? – Tyco Judgment
The recent “Tyco Judgement” of the Court of Justice of the European Communities (CJEU), has potentially large cost implications for businesses that do not provide a fixed place of work for an employee. The CJEU has held that where an employee does not have a fixed or habitual place of work, the employee’s travel time to a customer’s place of business shall count as part of the employee’s “working time”. This decision may affect businesses employing sales representatives, care workers and any other worker who does not have a fixed or habitual place of work.
In the Tyco case, the company had closed its offices in the provinces in Spain and assigned all employees to the central office in Madrid. Tyco employees were in the business of installing and maintaining security equipment at client bases (homes/commercial premises) within the province/geographical area assigned to them. Each employee had a company vehicle and a company mobile phone where he or she could communicate remotely with the central office. Each employee was advised of his assignments and locations the day prior to the assignments. The employees traveled directly from their homes to their customers’ premises as their place of work. Tyco viewed this initial travel time as a resting period, and only took into account the period from the commencement of work in the first customer’s premises to the time of leaving the last customers premises as “working time”.
Under the Working Time Directive (2003/88/EC), “working time” is defined as any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice. “Rest period” means any period which is not working time. The CJEU took the view that, as the employees were at the employer’s disposal during the journey to a customer’s place of work (in that the employee was acting on the instructions of the employer, who may change the order of the customers or cancel and add an appointment during the necessary travelling time), that this should be counted as working time i.e. employees were not available to use their time freely and pursue their own interests.
The Tyco Judgment is directly effective to public sector workers. Although legislation will be required to give effect to the Tyco Judgment for employees in the private sector, it is likely that the Workplace Relations Commission and the Common Law Courts will apply the entitlement to private workers in line with EU Law.
If your company has employees that fall within the category of having no fixed place of work, we recommend updating the company’s travel policy to ensure that the travel hours are now taken into account for calculating additional hours for payroll purposes and to ensure the employees hours of work are in compliance with the Organisation of Working Time Act 1997 (up to a maximum of 48 hours per week).
For more information, contact your usual Whitney Moore contact or Marie Claire Scullion in our Employment Group.