Mobile workers entitled to pay for commuting, says European Court

18th June 2015

A recent recommendation of the Advocate General could potentially change the legal position regarding how "working time" is calculated for mobile workers. Mobile workers are generally those workers who are not assigned to a fixed or habitual location.

The Advocate General looked at this point recently and has recommended that employers must include, within the calculation of working time, the time that the employee spends travelling from their home to their first customer/client and back home from their last customer/client. The advocate general saw no difference between this time and the time spent travelling between jobs during the working day, which is currently agreed to be classed as working time.

The reference to the Advocate General resulted from a Spanish case which involved a group of employee technicians who have complained that their employer is breaching the working time rules by not including their travel time to their first customer in the morning and subsequent return home after their last appointment in their working time.

The Advocate General's opinion is not binding, but the recommendation does provide a strong suggestion that this travelling time is an integral part of the job and should be counted as working time. The full judgment of the case is still awaited from the European Court of Justice (ECJ), but it is worth noting that the ECJ does usually follow the Advocate General's recommendations.

The Advocate General's opinion has potentially wide reaching consequences for employers. Employers in sectors such as the care industry may be particularly affected by any changes in this area. The impact could be significant as what is counted within working time will impact upon a wider range of issues including pay, the national minimum wage and working hours etc. For employers, it is worth noting that in light of the Advocate General's opinion there may be changes in this area to watch out for. Whilst employers do not need to make any changes straight away, it may be useful to start to think about how practices and operations may need to change if the ECJ's pending decision does follow the Advocate General's recommendation.  

If you wish to discuss working time and mobile workers, please contact Simon Bond of Higgs & Sons' Employment Department.


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