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22nd September 2015

Travel time for care workers – An update!

employment_law_travel_timeIn the case of Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, The European Court of Justice has ruled that, for those workers who spend time travelling from home to their first and last places of work should have this classed as working time.

This decision would apply to “peripatetic” workers i.e. those who travel from location to location and don’t really have a fixed place of work!

In the above case, Tyco employs technicians who install and maintain security equipment at customers' premises in Spain. The technicians are provided with a vehicle and they travel from their own homes to the locations they are instructed to install the equipment. They keep in contact with their employer via mobile phone and are not generally required to travel to an office or a central location, unless for the weekly purpose of collecting tools and materials.

Tyco argued that such time should be classed as a rest period. They also argued that as the technicians had autonomy on how routes were taken and the itinerary for the working day, this fell outside the working time directive. These arguments were rejected, the court concluding the travel time from the home to the first place of work and back home from the last place of work was working time.

Clearly this case has an impact on domiciliary care workers who often travel from their home to their first service user.

So what does this mean? Does it mean employers now have to pay for the time spent travelling to the first client and from the last client?

In short, the answer is “no”. The decision reached applies to the Working Time Directive (“WTR”) not the National Minimum Wage Act (“NMW”).

The WTR is concerned with governing working time, holiday leave and appropriate rest breaks/period, not pay. The ECJ also explicitly stated it is for the national legislation to decide whether this working time is with or without pay.

In this regard, The National Minimum Wage Act and Regulations, provides the position that travel time between home and a place of work is excluded from the obligation to pay the NMW, including for mobile workers.

The case of Whittlestone v BJP Home Support 2014, held that the NMW applied to the time spent by a care worker travelling from one client to another, but not to the time she spent travelling between clients and her home.

There are exclusions to this rule for those who work unmeasured time, but this would be rare as most care staff are paid for the hours they work.

As such, if travel between home and clients and back is time which is currently unpaid under the NMW legislation, it will remain unpaid.

Are there any other implications?

Note, the position on “pay” for working time could be different under the wording of the employment contract than under the NMW. For example, the contract may suggest that workers would be paid all "hours of work" which may include this form of travel time.

An audit on the wording of your employment contracts on hours of work and pay would be sensible, and if there as is any ambiguity, it may be worth amending them to specifically exclude travel to and from home.

The main issue which arises under this decision is the need to treat this travel time as “working time” and therefore ensure your working patter complies with the WTR in relation to the limit on working time (unless your employees have signed an ‘opt out’ of the 48 hour weekly limit), rest breaks and rest periods. For example:

  • Are your workers getting a daily rest period of 11 hours between the end of one day's working time, calculated as the time of arrival back home and the start of the next working day when they set out from home?
  • Are your workers getting weekly rest periods of 24 hours of consecutive non-working time?
  • The timing of breaks, after six hours of work, will start running as soon as the employee leaves home to go their first client and will need to consider their travel time from the last client and their home?

Oliver McCann, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor

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