The journey to work – work or rest?

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Posted in:HR and Employment|June 26, 2015 | Join the mailing list

Everyone who has ever experienced the stress of commuting to work on a daily basis knows that it can feel like an unpaid extension of the working day. Whether you are stuck in traffic or squeezing onto a crowded train or bus, it doesn’t feel like work
ends until you step foot through your front door (and sometimes not even then!).

It seems that, in relation to certain kinds of work, the Advocate-General of the Court of Justice of the European Union (“CJEU”) agrees, if the case of Tyco Integrated Security SL  is anything to go by.

The Advocate General’s opinion in that case was recently published and in it the Advocate-General stated that, for workers who do not have a fixed place of work, the time spent travelling to and from work should count as “working time” for the purposes of the
Working Time Directive.  

Previously it had been thought that, for that kind of worker, only the time travelling between jobs would be counted as working time, and not the time travelling from home to the first job of the day or the time from the last job of the day back to home. However,
the Advocate General’s opinion, if followed by the CJEU when it gives its final ruling in the case, would change that view and would mean that both the time travelling to the first job and the time back from the last job to home would form part of the worker’s
overall working time (and so would be subject to the limits on the amount of time that can be worked).

“Working time” under the Directive is based on three criteria being met. The worker must be:

1) at the workplace;
2) at the disposal of the employer; and
3) carrying out his or her activity or duties.

In the Advocate General’s opinion, these conditions were met by the commute to and from work where the worker had no fixed place of work and so that travelling time counted as “working time”. While the CJEU is not required to follow the opinion of the Advocate
General when it issues its judgment, in most cases it does.

Should the CJEU follow the Advocate General’s opinion when it delivers its judgment later on this year, this could have a large impact on businesses whose employees do not have a fixed place of work and could potentially severely shorten their available working
hours.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Nigel Crebbin of the berg Employment team on 0161 879 9229 or email him at
nigelc@berg.co.uk.

Follow us on Twitter: @Berg_HR

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)

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