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What is the definition of “working time”?

Regular readers may not be aware of a recent Opinion of Advocate General Bot (AG) in the case of Federación de Servicios Privados del sindicato Comisiones Obreras which may have an impact upon the definition of “working time” for the purposes of the Working Time Directive (2003/88/EC) (WTD). AG Bot has made a bold statement which may mean that peripatetic workers (those not assigned to a fixed workplace but who rather travel from their home to their first customer and vice versa) could potentially claim that this time spent travelling constitutes “working time”. 

All very good, but what does it mean?

Federación de Servicios Privados del sindicato Comisiones Obreras: FACTS

In this noteworthy case, originating in Spain, the issue at hand was whether time spent travelling to and from the first and last client of the day could count as “working time” meaning such time should be paid.

The employees in question were involved in the installation and maintenance of security alarm systems. Central to their employment, the employees had no fixed workplace and instead were provided with a company vehicle and were allocated a designated region in which they could work. Each working day consisted of driving to various jobs which were located at each customer’s residence. In the employer’s calculations for working time, under the WTD, the time exhausted travelling to the first job of the day to the employees’ respective homes and vice versa was not taken into account. The employees, as a result, brought a claim, represented by their Union, in the domestic Spanish court. They contended that the employer was in breach of the WTD by failing to include travelling times in the calculation for working time. With no guidance as to the issue in question within domestic employment law, the Spanish court reached out to the CJEU for help. 

A requisite step before the CJEU can hand down its preliminary ruling is to consult the AG and obtain an opinion on the relevant question of interpretation. This task was therefore handed to AG Bot who, in his opinion, declared that there are three criteria in order to satisfy the test for time spent to constitute “working time”, as laid down by the case of Jager (C-151/02 Jager). 

First, the employee is required to be at the workplace; secondly, the employee is to be at the disposal of the employer; and lastly, the employee is required to be engaged in work duties. The AG went on to explain that, concerning peripatetic workers, the first stage was satisfied. In fewer words, he articulated that this was the case as travelling is a vital part of this work. It would be absurd to hold that only the customer’s premises could be deemed as a workplace for these purposes and not also the requisite travelling to get there to do the job. Further, the AG went on to state that the second stage was also satisfied as the premises to be driven to were determined solely by the employer. Therefore, peripatetic workers are at the workplace at the disposal of the employer. Finally the AG opined that the third stage was also fulfilled. He reiterated that travelling to the given destinations was an integral part of the employment. 

Additionally, attention was drawn to the fact it is agreed that time exhausted travelling between jobs could constitute “working time” whereas time spent travelling from a habitual residence to a non-fixed place of work and vice versa at the beginning and end of the working day could not. The AG, in his opinion, could not draw a line between the two types of travelling. He further reverted to the concepts of working time and rest time in order to evidence his reasoning. He argued that since the concepts of “working time” and “rest time” are mutually exclusive (meaning that time which is not rest time must be working time and vice versa), and that rest time cannot involve obligations towards the employer (C-303/98 Simap), travel time logically constituted working time. 

What impact does this have upon peripatetic workers and their respective employers in the UK?

AG Bot’s Opinion regarding travelling time is just that; an opinion which is not binding on either the CJEU or the Employment Tribunals in the UK. However, peripatetic workers and their respective employers should be aware that the CJEU usually follows the AG’s Opinion voluntarily. Good advice to UK employers would be to assess the method used to calculate working time for their employees, especially those who do not have a fixed workplace and take into consideration this recent opinion in making any necessary adjustments. This will ensure that the Working Time Regulations are being adhered to.

As always if I can provide you with any further assistance in relation to issues relating to ‘working time’ please do not hesitate to contact me for a free consultation on 0113 350 4030 or samira.cakali@scesolicitors.co.uk.

Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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