The answer, from the European Court of Justice, is when they are a mobile worker who has no fixed base from which to start and end their working day.
In a decision that will have far-reaching implications for businesses moving from office-based to mobile working environments the ECJ has held that, for mobile workers with no fixed or habitual workplace, time spent travelling from home to their first appointment and from their last appointment back home is working time under EU law.
The UK courts now have to interpret the domestic Working Time Regulations (as regards rest breaks, limits on maximum working time, and holiday entitlements) in a manner consistent with the ECJ’s decision. Although the decision focussed on working time rules, it has an inevitable impact on pay arrangements too.
Employers for whom the decision is significant
The case before the ECJ involved mobile engineers who had no fixed or habitual place of work, and whose travel time at the start and end of each day was deemed to be time spent at the disposal of their employer.
It is therefore significant for employers who have, or plan to have, arrangements whereby mobile workers travel straight to and from a varying place of work at the beginning or end of their day.
Impact for employers
Where similar arrangements are in place, employers will now need to consider the following:
- Do working hours exceed the maximum 48 hour weekly average? If so, there will be a breach of the Working Time Regulations unless a valid opt-out is in place. The opt-out is only applicable to the UK.
- Is it necessary to make changes to the frequency and/or length of rest breaks or overnight breaks in light of the longer hours?
- For part time workers, will it result in an increase in entitlement to pro-rata statutory annual leave?
- Should new monitoring systems be introduced to track travel time accurately?
Are the workers still receiving the National Minimum Wage, notwithstanding their increased working hours?
- What pay should the workers receive in respect of the additional hours? Is it necessary to treat the extra hours as overtime?