Should employers be paying employees for time travel to a customer’s site? When does the clock start ticking? What counts as working time? Does this apply to employees? Mobile workers? Self employed?
In the Spanish case – Tyco (2015), the European Court of Justice concluded employees with no fixed workplace should be paid travel time to get to their customer’s appointments. There is no requirement to pay for time spent travelling from home to the first and last appointment of the day (as stated in reg 34 National Minimum Wage Regulation 2015 (SI 2015/621)). Therefore, this time does not have to be included when calculating whether an employee has been paid the national minimum wage for the hours he or she has worked.
Contractors/self employed are excluded as they are not employees.
Driving for work laws
It is useful to point out that travel time does not count for employees who commute to and from work.
But what about employees who travel to other locations (instead of their contracted place of work?) at the request of the business and setting off early to get to the appointment?
There is an argument to say that the employer has an element of control here – therefore travel time could be working time. The contract of employment or employee handbook should state guidelines when travelling on company business.
Working time is broken down into different categories. Examples include working in the work place, being on standby, travelling in connection with work and work place training. It is up to the employer to exercise their discretion on a case by case basis.
Sleep in’s is another category of working time. In a more recent case (2018), the Royal Mencap Society v Tomlinson – Blake, it was concluded that workers who ‘sleep in’ at their place of work are not entitled to national minimum wage whilst they are asleep. The reason being that they are not actually awake and working. Whilst awake and working, the employee would get paid. The judgement was a result of reflecting on working time directives as well as national minimum wage guidelines. This has saved the care sector industry millions of pounds. The Royal Mencap Society v Tomlinson case is currently subject to appeal at the Supreme Court which is likely to take place towards the end of this year.
It is important to note that the health and safety of mobile worker may get ignored as they are not visual in the business; under working time regulations employees are entitled to a daily rest period of 11 hours. In theory, this means that a mobile worker returning home at 8 pm could not be required to set off the next day before 7 am. However, this is an entitlement which workers can waive by agreement subject to health and safety obligations as employers should ensure that rest breaks are taken by workers. In a recent case, Grange v Abellio London Limited 2019, the EAT concluded failure to provide rest breaks under Working Time Regulations 1998 could lead to personal injury compensation.
If you have any questions over the subjects of this article or any other HR or health and safety queries, then please contact the Quest team here.
