A recent decision of the Court of Justice of the European Union (“CJEU”) could have substantial implications for employees with no fixed base for time spent travelling between their homes and customer premises, for which they may not previously have been paid.

On 10 September 2015, the CJEU handed down its judgment in Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA C-266/14 ("the Tyco case"). The CJEU determined that travel time between peripatetic workers' homes and first and last customers' premises is "working time" for purposes of EU Working Time Directive 2003/88/EC. The Working Time Directive is implemented in the UK through the Working Time Regulations 1998.

This will have an impact for the future on calculating daily rest and weekly working hours under Working Time Regulations and such hours will have to be taken into account when calculating national minimum wage.

It may also entitle workers to bring claims for back pay for failing to pay national minimum wage and/or failure to pay contractual entitlements.

The Tyco case

The issue before the CJEU was whether time spent travelling from the employees' homes to the first customer's premises and time spent travelling from the last customer's premises to the respective employee's home counted as working time for the purposes of the Working Time Directive.

Tyco was a Spanish company whose business was installing and maintaining security systems. The company’s employees did not have a fixed base. Tyco argued that travel time to and from the first and last customer premises was not working time because the employees were employed to provide technical services, installing and maintaining security systems for customers. These were their duties, not travelling between home and customer premises.

The CJEU did not accept this argument and decided that this travel time was working time.

Impact

This is likely to be an issue for employers of workers or employees who have no fixed or habitual place of work and are required to travel between their homes and customer premises, where the employer does not recognise this time as working time.

This travel time must be taken into account by employers when calculating employees weekly working hours and may require adjustments to working patterns to ensure that (a) workers or employees are not working regularly over the 48 hour weekly limit unless opt out agreements are in place and (b) when calculating daily rest periods of 11 uninterrupted hours under the Working Time Regulations.

Employees may also bring claims for back pay if this time has not been taken into account by employers when calculating minimum wage or other contractual entitlements.

The case will have wage implications because working time must be taken into account when calculating the average hourly pay under the National Minimum Wage legislation. This could have a profound impact in the light of the increase in the National Minimum Wage in April 2016 onwards.