Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, and Tyco Integrated Fire & Security Corporation Servicios SA
The European Court of Justice has ruled that where there is not “a fixed or habitual place of work”, time spent travelling to and from work (their first and last customer) will now count as working time. For employees with a fixed place of work, this modification has no effect
Section 1(4)(h) of the Employment Rights Act 1996 requires a Statement of Particulars to specify “either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer”. (This would include employees who are home based). For workers with no fixed workplace, this can simply specify something along the lines of ‘any advised address within X miles of the address of the employer’, or similar.
The impact of the ruling is not 100% clear, firstly, because it is the Advocate General’s opinion – it is used as guidance for the ECJ. It is often followed but it is not binding. It will be likely some months before this decision.
Further considerations as a result of ruling
- The Working Time Regulations (WTR) 1998 will need to be interpreted in accordance with this ECJ decision. The decision is likely to impact employers with a mobile workforce as well as those looking to move towards a more remote style of working generally.
- The time designated as “working time” under the Regulations may impact on the maximum limit on weekly working time (if the employee has not opted out) and a worker’s entitlement to rest periods.
- Just because this period may be working time for the purposes of the European Working Time Directive (the origin of the WTR ), it does not mean that it automatically falls within the National Minimum Wage (NMW) Regulations. Clarity on this is still outstanding