Civil Fraud Quarterly Round-Up: Q1 2021
Can travelling to and from work constitute working time in the case of workers without fixed or habitual places of work? We report on a recent Spanish case: Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL.
This case concerned a Spanish company, Tyco Integrated Security SL (“Tyco”), which employed technicians to install and maintain security equipment in homes and businesses throughout Spain. In 2011, Tyco closed its regional offices and transferred all employees to its central headquarters in Madrid. As a result, instead of attending their regional office each day to receive instructions, all technicians were issued a mobile phone by which they were sent daily instructions as to which customers they would attend the following day.
The technicians, therefore, were not assigned to a fixed place of work and each day were required by Tyco to travel to the premises of a new customer directly from their home and then travel back from those of a different customer. The areas covered by the technicians were extensive and on some occasions this travel time amounted to three hours.
The question, which was referred to the ECJ, was whether that time spent travelling by the technicians at the beginning and end of the day constituted working time or a rest period for the purposes of the Working Time Directive.
The ECJ decided that the time spent travelling each day by the technicians between their homes and the premises of the first and last customers, as designated by the employer, did constitute working time.
The key factors in coming to this conclusion were:
This case clearly may be of some concern for businesses which employ workers without a fixed or habitual place of work, such as salespersons. The requirement for workers to have adequate rest periods and to be subject to a maximum 48 hour working week (under the Working Time Regulations 1998) may mean that employers now get less of what they may consider ‘productive working time’ out of their employees than previously.
The UK government intervened in the case to make some observations and noted that the decision would lead to increased costs for Tyco and businesses in general, including the increased burden of monitoring employees to prevent abuse of such a system. In response, the ECJ declined to make a ruling and noted that the levels of remuneration for this travelling time would be a matter for relevant national legislation.
However, it remains to be seen whether this case will have any such wider application. The particular circumstances of this case may limit this, especially given the emphasis that the ECJ placed on the fact that Tyco had changed the way it calculated working time, after closing its regional office, in such a way as to disadvantage its technicians. That being said, employers who are planning a move from office based to mobile staffing arrangements should take particular note.
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