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Mobile Workers - Working Time
In a previous news item I mentioned the fact that the Advocate General had provided his opinion that for mobile workers (those not having a permanent office base) were at the employer's disposal when they were travelling to their first customer of the day and travelling back from their last customer.

The case involved engineers installing and servicing security systems who worked from home and the European Court of Justice has now issued its judgement on the case.

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 [Working Time] directive."

This has implications for employers who have employees who work from home as opposed to those who work from an office or other business premises, for whom this does not apply. It means that for those affected, such travelling hours are counted as working hours. Therefore this must be taken into account when calculating the entitlement to an uninterrupted rest period of 11 hours between the arrival home of the employee one evening and his/her departure the following morning. Note that even if employees have opted out of the 48 hour average working week, they cannot opt out of statutory rest periods, so you cannot ask them to start out early the next day if they get back late.

There has also been much debate in the media about the implications of this judgement with regards to pay. There is no obligation on an employer to pay an employee for every hour they work - indeed many are salaried and work unpaid overtime (but this only applies if on average they receive at least the National Minimum Wage (NMW)). Such travel time clearly counts as working time for people affected by this ruling, but that does not mean that they have to be paid for it. What matters is what the contract says. However, employers need to be aware that this working time must be included in calculations to establish the rate of pay and whether the employee has been paid at least the NMW rate.
Posted on 19 Nov 2016

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