Travelling time and the problem of productivity 

The law in Europe on paying for travelling time has become clearer over the years. The Thue[i] and Tyco[ii] cases provide that travelling to and from work assignments at the beginning and end of the day where there is no “base” (Tyco), or where the first or last assignment does not require travel to the “base” (Thue)  is Working Time, and therefore should be paid for, and count towards the working hours total.

What has not been made clear is the relationship between “travelling” working time and contractual hours. Say an employee has core hours of 8.30am to 5pm. They say “If travelling is working, then I don’t have to set off for my first assignment until 8.30am, and have to make sure that I am home by 5pm.”

This reduces the number of daily assignments, and therefore productivity. Given the legal position peripatetic workers are entitled to count travelling time as working time, and therefore as part of their contracted hours. This time must be paid for (unless an employer insists on checking in at a “base” to collect assignments”), so how does an employer avoid paying for travelling and reduced productivity?

To fix this problem, employers should set clear distinctions in their employment contracts. A clause requiring employees to work other hours as reasonably requested is a start, but may not be enough. Making it clear that the contractual hours – or better still “core hours” – have to be spent performing assignments, or travelling from one assignment to another would be good.  Better still to make it clear that travelling to the first and from the last assignment of the day must be outside “core” hours.

Overtime rules will need to be watched carefully, and any overtime applied – perhaps by reference to travelling at antisocial hours – to ensure that travelling time does not automatically become overtime.

This clarity has implications. Overtime rules will need to be watched carefully, and any overtime applied – perhaps by reference to travelling at antisocial hours – to ensure that travelling time does not automatically become overtime. The 48 hour weekly limit (which most employees contract out of) may become an issue. However managing these issues should be preferable than having your clients pay more for less.

[i] Thorbjorn Selstad Thue supported by the Norwegian Police Federation (Politiets Fellesforbund) v The Norwegian Government (Directive 2003/88/EC Case E-19/16)

[ii] Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL (Case C-266/14) [2015] IRLR 935.

Liam Entwistle, is a Partner at Wright, Johnston & Mackenzie LLP. Email: lae@wjm.co.uk. Tel: 0141 2458 3434.

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