Travelling & Sleeping time
13 October 2015
Is time spent travelling to work working time?
The recent ruling by the Court of Justice of the European Union (CJEU) would suggest the answer to this question is yes! However, before we can provide clarification on this matter we must look deeper into the case. The decision is based on the case of a Spanish security installation company called Tyco. The employees, who had no fixed place of work, travelled across Spain to appointments and the time spent travelling to the first appointment and travelling home from the last appointment was not counted as working time. Their employer counted this travel time as rest time. The Court ruled that “where workers, such as those in the situation at issue, do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the directive”.
There has been a lot of coverage on this matter making reference to national minimum wage increases and/or an increase in pay as a result of this ruling. These points are addressed below:-
1. The travel time referred to is very specific and does not extend to all employees travelling to and from work. It relates specifically to employees who do not have a fixed place of work. Unfortunately it may extend to companies that employ mobile workers such as in the care sector, travelling salesmen and tradesman;
2. The Working Time Regulations do not set pay – nor do they provide any guidelines for setting pay rates. It simply sets maximum working hours, daily rest, weekly rest and annual leave entitlements etc;
3. The National Minimum Wage is not subject to European law, as such the ruling can have no direct effect on the level of the national minimum wage. However, the implication could be that as a result of more working hours, an individuals’ pay per hour may fall below the national minimum wage. It should be noted that the NMW does not include time spent travelling between home and work for calculation purposes, and
4. If staff are already working close to 48 hours per week and this ruling is relevant to them, it may be possible that employers could ask them to opt out of the Working Time Directive’s maximum of 48 hours. This opt out has to be reviewed annually and in any case, the working week cannot exceed 60 hours.
So how does this ruling affect you and what should you do?
Employers should not rush into any action. The ruling has come from Europe and it will take time for the UK Government to consider it and issue a direction. Once clarification or a direction has been issued we will provide guidance on what actions need to be taken by employers.
Sleeping Time for Residential Workers
If you have workers who live in a place of work then this case might be of interest to you. Are they entitled to be paid the NMW for all hours during the night?
The EAT have held in Shannon v Clifton House Residential that the employee was not entitled to the NMW for all hours during the night, only for the hours during which he is awake and working as set out in Regulation 16(1A) of the National Minimum Wage Regulations 1999. This Regulation provides that if a worker sleeps at his place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping will only be treated as being salaried hours when the worker is awake for the purpose of working. It is worth noting that in this particular case there was another night worker on duty and that in practice the Claimant was rarely called upon.
If you have any queries please contact Emma or Lindsey on 0141 352 7435.