Features
15 Sep 2015 09:50am

ECJ ruling on commuting proves controversial

Business representatives are calling on the UK government to revisit employment law in the light of the controversial decision by the European Court of Justice that the time mobile workers spend travelling to and from their first and last appointments of the day should be considered working time

This means that businesses employing, for example, sales reps, care workers, plumbers and other tradespeople, who do not work from a fixed office, may be in breach of the EU Working Time Directive (WTD). As a result, they may face a huge hike in employment costs for less productive work time.

Institute of Directors head of EU and trade policy Allie Renison said that the decision would surprise and concern many UK businesses.

“The notion that the period mobile workers spend travelling between home and their first client in the morning must count as working time goes above and beyond the protections intended by the law.

“It is a worrying development that the main source of new European labour law now seems to be the EU court. The new European Commission has thankfully decided to reduce the volume of new regulation it creates, but, along with the recent judgment on holiday pay, the ECJ has become a red-tape machine, tormenting firms across Europe.”

Dr Adam Marshall, executive director of policy and external affairs at the British Chambers of Commerce, said the ruling underlined the importance of greater national decision-making on employment laws.

“Once again, a faraway court is taking decisions that could impact business prospects, job creation and economic growth in the UK.

“Companies of all sizes will be dismayed that Luxembourg is once again intervening in a way that stops EU member-states from running their own labour markets.”

However, unsurprisingly, the ruling has been welcomed by the unions. TUC General Secretary Frances O’Grady said, “Many bosses are already fair-minded about travel time for journeys to customers. But this sensible ruling will prevent unscrupulous employers opening up a loophole to force some staff to work upwards of 60 hours a week.”

Dave Prentis, general secretary of Unison, which has many care workers among its 1.3m members, said that the case demonstrated rightly that mobile workers must be paid for all their working time.

“This judgment is bound to have a significant impact in the UK, particularly on home care workers. Tens of thousands of home care workers are not even getting the minimum wage because their employers fail to pay them for the time they spend travelling between the homes of all the people they care for.

“Now thanks to this case, they should also be paid when they are travelling to their first visit, and again back home from their last.”

The case, Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, involved two security system companies based in Spain whose employees’ jobs involved travelling to customers’ premises to install and maintain antitheft security equipment.

In 2011, Tyco closed its offices in the provinces and assigned all its employees to the central office in Madrid. The employees were each provided with a company vehicle and allocated a geographical area of operation. The distances between their homes and where they had to carry out the work varied enormously – sometimes the journey was up to 100km long and took up to three hours to drive.

Tyco counted the time spent travelling between home and customers not as working time but as a rest period and it calculated the daily working hours by counting the time elapsing between when its employees arrived at the premises of the first customer and when they left the premises of the last customer.

However, before the regional offices were closed and the employees made to work remotely, Tyco used to count their daily working time as starting when they arrived at the office to pick up their vehicle and receive their task list for the day.

  

Along with the recent judgment on holiday pay, the ECJ has become a red-tape machine, tormenting firms across Europe

Allie Renison, IoD

The Spanish High Court referred the commuting question to the ECJ asking whether it should be considered working time within the meaning of the Directive. The ECJ’s response was yes, given the health and safety issues at stake.

In a statement, it said that it considered workers with no fixed or habitual place of work to be carrying out their activity or duties over the whole duration of those first and last journeys. “The journeys of the workers to the customers their employer designates is a necessary means of providing their technical services at the premises of those customers,” it said.

“Not taking those journeys into account would enable Tyco to claim that only the time spent carrying out the activity of installing and maintaining the security systems falls within the concept of working time, which would distort that concept and jeopardise the objective of protecting the safety and health of workers.”

The fact that the journeys were considered as working time before the offices closed showed that the work consisting of driving a vehicle from a regional office to the first customer and from the last customer to that office was previously among the duties and activities of those workers.

“Yet the nature of those journeys has not changed since the abolition of the regional offices. It is only the departure point of the journeys that has changed.”

The court added that the workers were at the employer’s disposal for the time of those journeys since at any point the employer could change the order of customers or cancel or add an appointment. “During the necessary travelling time – which generally cannot be shortened – the workers are therefore not able to use their time freely and pursue their own interests.”

Clive Lewis, ICAEW’s head of enterprise, said that the ECJ’s decision would cause immense headaches for businesses. “I don’t know how this is going to work in practice,” he told economia.

“Every journey is going to start at a different time and it will be difficult for businesses to track. This is another regulatory burden that is being imposed on business that it just doesn’t need.”

He pointed to research by the Regulatory Policy Committee, which provides external, independent scrutiny of new regulatory and deregulatory proposals, on implementation of the Small Business, Enterprise and Employment Act 2015.

Analysis showed that nearly half of the approximately 1,000 laws enacted during the last parliament fell outside the scope of the government’s “One in, One out” and “One in, Two out” rules. Nearly 70% of these were of EU origin and many had a substantial impact on businesses.

Lewis called on prime minister David Cameron to make deregulation and opt-outs part of the negotiations on EU reform. “The EU has made a commitment to deregulation but we would like to see it happening.”

The IoD agreed. “Ensuring that employers do not have additional costs and burdens sprung on them like this must be a core element of the PM’s renegotiation efforts,” Renison said.

Julia Irvine

 

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