Irish companies could face substantial wage bill increases after a European Court of Justice (ECJ) ruling that time spent travelling to and from home by staff without a fixed working base should count towards hours worked.
The decision relates to a case involving staff at a Spanish security firm named Tyco. However, because the ruling covers the European Union working time directive, it is expected to affect workers across the bloc.
The ruling says excluding journeys made by employees from working time would be contrary to the objective of protecting the safety and health of workers pursued by EU law. It essentially means businesses will have to pay employees without a fixed working base for their journey time and will also affect how rest break entitlements and maximum working hours are calculated.
The case came about after Tyco closed a large number of regional offices across Spain in 2011 and technically assigned all its employees to the company’s headquarters in Madrid.
No fixed place of employment
The staff employed by the firm instal and maintain security equipment in homes and on commercial premises located within whatever geographical area are assigned to them, and so have no fixed place of employment. With some staff members travelling for up to three hours a day without pay, employees went to court to argue that time spent commuting from home to business appointments should be officially classified as working time.
The British government tried to intervene in the case, arguing that allowing travelling time to be counted as working time would lead to substantially higher business costs. The ECJ dismissed this argument and sided with the Spanish employees.
It said that where workers who do not have a fixed or habitual place of work, time spent travelling 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.
Carrying out duties
“The court considers workers in such a situation to be carrying out their activity or duties over the whole duration of those journeys,” it said, adding that it also took the view that staff are at the employer’s disposal during travelling time and should officially be classified as working at such moments.
The ruling is potentially good news for those who don’t have a set workplace such as tradespeople and care workers. However, Patrick Walshe, employment law expert at Irish legal firm Philip Lee, advised employees not to get overexcited by the decision.
“I suspect that in an extreme case such as this one where someone has to spend hours travelling to work without pay may be one thing but I strongly doubt whether many people would successfully be able to argue this,” he said.
“Obviously decisions of the ECJ are binding on the entire community but I think this is one that is going to have to result in an amendment to our Working Time Act . . . Once our legislation is amended – which could be years away – it would fall on individual courts and tribunals to interpret.”
Employers’ group Ibec said careful consideration must be given to those employers with workers travelling to a variety of locations in the course of the working day.
“Our advice has consistently been that travel time from a worker’s home to a variety of possible working locations is likely to be considered working time,” said Ibec head of employment law services Rhona Murphy.
