TRAINING & EDUCATION
STOP THE CLOCK!
James Franklin, Divisional Manager at Cento, discusses the latest European Court of Justice working time ruling for mobile workers, and provides practical advice to both employers and employees.
In 2015, the concept of “working time” for mobile workers became a real issue. A dispute in Spain between Tyco and mobile technicians employed by the security business led to a significant ruling by the European Court of Justice (ECJ). This ruling stated that where employees had no set place of work, travel time amounted to working time. This was cited under the principles of the Working Time Directive, a document intended to guarantee minimum safety and health requirements for organisations surrounding working time, ensuring workers receive all relevant entitlements.
Technicians employed at Tyco were required to visit varying premises to complete their work, installing and maintaining equipment. Often this involved distances of up to 62 miles. Tyco argued that the time spent travelling to and from such appointments did not count as official working hours but should be allocated as “rest time”, with working hours starting when the employees arrived on the customer premises. The ECJ rejected this argument completely and ruled that all hours spent travelling for such workers counted as working hours.
Furthermore, the ECJ ruling means that throughout Europe, mobile employees are working from the moment they leave home to attend an appointment, with the day only ending once arriving home after the last appointment. Here in the UK,
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both the concept of homeworking and the number of mobile workers is on the rise. This includes individuals working almost entirely from home, only occasionally leaving for office meetings/client meetings and workers in roles that require extensive travelling, meaning home is used as a base.
The Office for National Statistics highlights this steady increase, with 1.2million homeworkers in 1998 compared to 4.2million in 2014. More than a third of these homeworkers are employees, meaning that they work under an employment contract for an employer.
As the health and safety industry consists of mobile salespeople, occupational hygienists, consultants and many more who are using home as a base, this ruling needs to be considered by both employers and employees and actioned accordingly.
ADVICE FOR EMPLOYERS Travel time to and from appointments for such workers will now count towards the 48 hour working week. Naturally, this will change existing arrangements and employers will need to review working hours, considering whether the inclusion of travel time would change the employees’ average working hours and exceed the 48 hours in any week. For employees to opt out of the conventional 48 hour working week, a written agreement with the employee would be required.
Rest breaks may also be affected which will require employers to investigate and assess where and if additional breaks are required. Moreover, wages may also need to be increased by employers to avoid breaching existing legislation regarding the national minimum wage and national living wage.
ADVICE FOR EMPLOYEES In the first instance, mobile employees need to speak to their employer to find out how and if they are affected by this ruling. There is a clear opportunity for employees to use this situation as the time to review the entire Working Time Directive document to ensure they are receiving the full benefits from it. At a glance, workers are entitled to a minimum daily rest period of 11 consecutive hours in every 24 and paid annual leave of at least 4 weeks per year. Employees should review this document and then ensure their employer is complying with the stipulations within it, taking necessary action if they are not.
Clearly, this ruling is a break from the past and the health and safety industry may see real changes as a result. It will undoubtedly cause reviews and may lead to costly disputes between employers and employees. It is crucial both sides take time to understand the ruling to be able to identify how and if they are affected.
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