Slider

The European Working Time Directive sets clear and strict limits for permitted hours of work to protect the employees' health and safety. Work-time is any time that is not rest time, there is nothing in between. Thus for certain activities such as commuting from home to work and vice versa it needs to be determined whether such time is considered work or free-time.

While normal commuting (until now) is not counted as working time the European Court of Justice now considers a decision that might change the landscape for whole industries.

According to the opinion of the Advocate General in a Spanish case of workers without fixed work base the travelling time to and from home to a costumer must be seen as working time.

Facts of the case

During of the economic crisis in 2011 two Spanish companies, who employ technicians to install and maintain security equipment in homes and in industrial and commercial premises, abandoned previously rented regional offices and reduced their administration to a headquarter in Madrid. The technicians where assigned a geographical area around their homes, from which they directly travelled to a customers (up to 100 km and more each way) in accordance with work instructions they received electronically. The technicians also recorded the work done and any remarks electronically and transferred the data to the headquarter.

The companies did not treat the time spent travelling from an employees home to his first assignment at the start of the working day as working time, nor did they treat time spend travelling from the last assignment home as work-time.

The Spanish court referred the case to the European Court of Justice, now the Advocate General has on June 11th 2015, delivered his opinion.

Opinion of the Advocate General

According to the Advocate General the commuting time from home to the first customer of the day and back from the last customer to home must be considered work-time within the meaning of the European directive. Work-time is characterized as any period in which the worker is working at the employer's disposal and carrying out his duties.

According to the Advocate General all three criteria are met. Since travelling is a integrate part of being a worker without fixed work base and since such travel is a necessary means of the technician to provide his services to costumer designated by his employer the worker is working and carrying out his duties when travelling to the first and from the last customer.

Further the Advocate General states that such technician is at the employer's disposal at the time of travel. Travel is done in the context of the hierarchical relationship that links the technician to his employer, further and most importantly the journeys and distances to be travelled solely depend on the employer's wishes and the employer has the authority (and uses it frequently) to change the order of the customers visited or to adds another customer during the course of the day.

The Advocate General took the opportunity to address concerns raised by the defendants in the proceeding, who feared sure that some workers might take advantage of journeys at the beginning and end of
the date to carry out personal business. The Advocate General stated, that in his view such argument is not sufficient to change the legal nature of the journey time. It is "up to the employer to put in place the necessary monitoring procedures to avoid any abuse". The additional administrative burden is in his opinion a direct consequence of the decision of the employer to abandon fixed working places.

Further he argued that there is no difference in any travel time between customers and travel time to and from the first and last customers respectively. The fact, that the departure and the arrival points of the daily journeys are the technician's homes is not considered to be relevant, but another consequence of the free choice that was made by the employer to remove fixed establishments. Therefore it does as well not seem disproportionate that any burden resulting from such business decision must be borne by the employer, who additionally has the benefit of the use of new technology. Thus introducing new ways of organising the work, which were previously unknown and which serve the purpose to substantially reduce the costs of operating a fixed infrastructure, is his free choice.

Although not decisive for the case where the technicians travelled with a company car provided to them by the employer, the Advocate General in his Opinion pointed to previous decisions of the European Court of Justice, in which it was made clear that the question, whether a driver has received precise instructions as to how he should travel, is not decisive. Therefore the means of transport is irrelevant.

Conclusion

The Advocate General's opinion is not binding on the European Court of Justice, who will decide the case and publish the judgement later this year. Usually, although not always, the court follows the arguments of the Advocate General.

If that would be the case here many businesses operating employees without fixed base such as service based industries (as in the Spanish case) or field service employees in distribution might face serious
consequences for their business model, cost calculation and workforce planning. Such decision would directly impact the work time planning of employees in field service, who might take up a majority of their daily work routine by travelling to, from and between customers. The "pure" time of work (at the customers place of business) might be seriously reduced.

Further, mandatory rest periods of eleven hours need to be observed, which only start after the employee has returned home. Thus an early morning start of the day is often out of the question. Careful planning of resources would therefore be required.

A further consequence of such decision might be to what such additional work-time might mean for the remuneration of employees, especially in view of the minimum wage legislation.

For many employers it will therefore be wise to carefully monitor the developments and watch out for the final decision of the European Court of Justice.