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Should “working time” include time travelling to work?

BY Gerry O'Hare
Employment Law & HR
BG Purple

An Advocate General of the European Court of Justice has delivered an opinion in a Spanish case exploring whether time spent travelling to / from work or between appointments is “working time” for the purposes of the European Working Time Directive.

Before the ECJ gives its ruling on any case, an Advocate General will examine the case and give an opinion. These opinions are not binding on the Court, but most of the time they are followed. 

The group of workers involved in this case were employed to install security systems in Spain. They were not assigned to a particular workplace and spent a good deal of their day travelling between customer sites. Their employer did treat travel between appointments as working time, but did not count the first and last journeys of the day as working time. 

The WTD does not set out whether travel to/from or between places of work should be considered “working time”. Non statutory guidance from the UK government says that "time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24-hour plumbers" is included in working time, but that "normal travel to and from work" and "travelling outside of normal working hours" are not. 

Advocate General’s opinion in this case is that this time should be considered “working time”. He outlined three key features of working time from the Directive. These are:

  • Workers must be at the workplace.
  • Workers must be at the disposal of the employer.
  • Workers must be carrying out their activity or duties.

The opinion explains that, where travelling is necessary to carry out duties, workers can be considered at work and at the employer’s disposal in terms of the Directive. As there was no fixed place of work in this case, there was no reason why travelling time from the workers’ homes to their first appointment should have been treated differently from leaving the office to attend the first appointment. The Advocate General suggested that employers may wish to implement monitoring procedures to ensure payment of travelling to work is not abused by workers. 

There is currently little case law on this particular point so employers will be keeping a keen eye out for a definitive decision from the ECJ which will follow in the coming months.

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