In 2015, the European Court of Justice ruled that employees without a fixed place of work should have time spent travelling to and from their first and last appointments treated as working time by their employers.

The ruling came about following a legal claim in Spain involving a company called Tyco, which installs security systems.

Tyco shut its regional offices in 2011, resulting in employees travelling varying distances before arriving at their first appointment. The distances between the workers’ homes and the places where they carried out work varied a great deal and were sometimes more than 100 kilometres, taking up to three hours to drive.

Tyco counted the time spent travelling between home and customers, not as working time, but as the employee’s rest period. The period of work on the premises and the journeys between each customer’s premises was the only time deemed to be working time.

Before the closure of the regional offices, however, Tyco used to count the daily working time of its employees as starting when they arrived at the office (the employees then picking up the vehicle they were to use) and ending when they returned to the office in the evening (to leave the vehicle there).

The Court of Justice declared that workers with no fixed place of work who had to travel between their homes and the premises of the first and last customers should have those first and final journeys designated by their employer as working time within the meaning of the directive. The Court took the view that the workers are at the employer’s disposal for the duration of those journeys.

Tyco decision and the Norwegian Supreme Court case of Thorbjørn Selstad Thue v The Norwegian Government

A subsequent advisory opinion of the Court of Justice for the Free Trade Association State’s Court (EFTA) to the Norwegian Supreme Court in the case of Thorbjørn Selstad Thue v The Norwegian Government echoed the decision in the Tyco case.

The EU Working Time Directive is incorporated into the European Economic Area Agreement, which means it applies in Norway. The EFTA found that the travelling time to and from work for a Norwegian Chief Inspector of the police, to carry out his duties as a police escort is also ‘working time’.

Interestingly, the Court did not accept the respondent’s argument that the Tyco case is distinguishable from the Norwegian police case because Tyco applied to workers without a fixed or habitual place of work.

The reason for this view was that despite having a fixed place of work, employees still required the protection of the Directive in relation to adequate rest when working away from the office.

During the time of travel to an assignment directly from home, the worker “remains under the instruction of the employer, with the employer maintaining the right to cancel, change, or add assignments”, therefore they are at the disposal of the employer, constituting working time.

Impact for Irish Employers

The decision in Tyco had a direct impact on the interpretation and application of the Organisation of Working Time Act 1997, specifically in relation to rest breaks. In addition, the Norwegian case demonstrates the uniform application of this principle in relation to travel time and not just to workers with no fixed place of work.

There are some preventative measures that employers may want to consider to offset a challenge to existing work practices that might offend the working time rules:

• Have a clear policy in relation to working time for workers whose role is primarily based on the road visiting customers or clients, specifically in relation to daily rest breaks.
• Ensure there is an explicit clause in relevant contracts of employment stating whether travel time is counted as working time.
• Implement efficient scheduling systems to ensure that appointments are made as close as possible to the worker’s home for their first and last appointments where possible.
• Ensure records accurately record start and finish times.

Expert HR advice on working time queries

Irish employment law imposes strict obligations on employers around employee working time.

To check your compliance with working time rules, speak to a Graphite HR expert today on 01 886 0350.