The European Court of Justice (ECJ) decided in September 2015 that travel time counts as working time. This applies when a worker does not have a fixed place of work but is required to travel from home at the beginning of the day to the premises of one his customers, and to return home from the premises of another existing customer – following a list or route that the employer has determined for the worker.

If you need to understand what this may mean for your staff and working practices please contact us to help you. You can read our full article here.

Employers who are affected are thought to be still struggling to get to grips with what this will mean for them and their staff – but many expect the costs will stay with the employer and not be passed onto customers. It’s certain that contracts and conditions will need to be looked at – in terms of hours worked, breaks, 48-hour Opt-Out clauses, how work is scheduled and by whom, place of work and conditions and perhaps ultimately wages.

Whether the company controls the time spent between home and the first customer because it tightly schedules the appointments for the employee, or the employee has the flexibility to manage the itinerary will be key.

Please talk to us if this may affect you, as we can help you consider what options you have.

September 2020 update (slightly different circumstances to above, but interesting!):travel

In Mr T Holloway v Aura Gas Ltd, an employment tribunal found that Mr Holloway, an engineer, was unfairly constructively dismissed (and wrongfully dismissed) after he resigned over a dispute about his pay while travelling for work, where his employer refused to pay him overtime for travelling between jobs.  The tribunal found this was a ‘fundamental breach of contract and a fundamental breach of the implied term of trust and confidence in Mr Holloway’s contract of employment with the company”.

Mr Holloway was a heating engineer for Aura Gas from January 2015 until he resigned in September 2019, reporting to the MD Gary Robinson.  When he started his conditions of employment said he would be required to travel to other locations and would be expected to work 45 hours per week.  The tribunal heard that Mr Holloway spent the majority of his working time at customers or travelling to suppliers.

Mr Holloway said that, initially, his jobs were fairly local, but that over time the distance of travel to jobs increased and said that “it was known for me to travel up to five or six hours per day additionally to my contracted hours…”.  In October 2018, Holloway corresponded with Robinson about the ‘unofficial travel rules’ that a colleague had told him had been changed.  Robinson said “Travel is definitely not included in your working day, and we do not pay you to travel unless over the hour” (the first or last hour of travel were not paid).

After Holloway was asked to attend an investigatory meeting on 18th June (for charges that he was refusing to work his contractual hours, that he was falsifying his time sheets, dragging out jobs and not completing reasonable work requests), he wrote to the Technical Manager of Aura Gas, Martin Cornell, on 11th June, setting out several formal grievances – that he was not paid for all the overtime he incurred while travelling between jobs; that the company had reduced his pay from ‘double time to time and a half’; that he was “always given the job that involves the furthest distance”; and that he was undermined by Robinson while at work.

Holloway’s grievances were heard and rejected at the end of July; he appealed but this was rejected on 11th September.  On 13th September he handed in his resignation and brought claims of unfair dismissal and breach of contract in relation to unpaid wages.

The tribunal said that Holloway’s complaint of  breach of contract for unpaid overtime wages was well founded.  It also ruled that Holloway was wrongfully and unfairly constructively dismissed because of the travel time wage dispute.

Aura Gas were ordered to pay Holloway unpaid overtime wages, unfair dismissal and wrongful dismissal compensation, totalling nearly £12,000.

At no point had Holloway been asked to sign an opt-out to agree to work over the 48 hour weekly legal maximum limit (in the Working Time Regulations), which his travelling time had often pushed him over.