Working time and the drive to work

Wednesday 19 August 2015

A traffic-clogged daily commute to and from our place of work is all too familiar to many of us.  The fact that we aren’t paid for the time wasted in that commute merely rubs salt into the wound.

Can that commute ever be categorised as “working time”?

For time to be classed as ‘working time’ the employee or worker must be:

• at the work place;

• at the employer’s disposal; and

• engaged in work duties.

That explains why, for most of us, the daily commute can never be “working time”. For travelling workers such as delivery drivers and salesmen, the chances are that they are regarded as “working” from the moment they leave home: the first requirement is fulfilled because travelling is an integral part of the job, the second as long as routes and destinations are determined by the employer, and the third if travelling is integral to the role. But that will be fairly academic if the individual in question is salaried.

What of other workers who have no fixed place of work and who are paid by the hour only for “working time” – for example, a worker who visits a client’s home as part of a domiciliary care package? Historically, the view was that for such a worker time spent travelling to the first appointment of the day, and back home after the last appointment, was not “working time” and therefore fell outside legislation such as the Working Time Regulations (WTR) and the law relating to minimum wage.

However, in the case of Federacion de Servicios del sindicato Comisiones Obreras, the Advocate General of the European Court of Justice (ECJ) has expressed the view that where workers are not assigned to a fixed place of work, time they spend travelling to and from their first and last customers counts as ‘working time’ for the purposes of the Working Time Directive. The Advocate General’s opinion is not binding – but as it is rare in the extreme for the full ECJ not to follow such an opinion, it is highly likely that this new interpretation of the Directive will soon be endorsed.

Courts and Employment Tribunals are required to construe domestic legislation (for example, WTR) so as to comply with the Directives from which the legislation is derived, so it seems likely that the ECJ’s forthcoming decision will soon affect the way we must interpret and apply both WTR and national minimum wage obligations.

So, is this good news for hard-pressed care workers? Well, it was only a few months ago that news headlines were awash with tales of care workers missing out on the national minimum wage (http://www.bbc.co.uk/news/uk-31258205) and what the newspapers were describing as the scandal of the 15 minute home visit. The riposte from the industry body, the UK Homecare Association, was that the commissioning bodies (that is, the local authorities) needed to take into account the true cost of delivering home care services when letting contracts to the independent and voluntary sectors. But with local authorities having suffered an average 40% reduction in council funding over the term of the last parliament, any expectation of an increase in spending in this area looks fanciful.

Commentators were already sceptical that Iain Duncan Smith could deliver on the Conservative’s election promise to cut £12bn from the welfare budget. With confirmation of Advocate General’s opinion now imminent, the pressure on the Secretary of State for Work and Pensions to say where the axe will fall seems certain to get worse.