Should employees be paid to travel to work?
Once the day of Brexit arrives, few would be surprised if the Working Time Regulations are high on Theresa May’s list for major change. Yet, for the moment, employers continue to struggle with the application of these Regulations, and their interpretation by the European Court continues to spring unpleasant surprises.
Not the least of these surprises has come in relation to travelling time. Whereas an employee with a fixed place of work does not ‘clock on’ until he or she arrives at work, it has been held that a mobile worker – such as a field servicing engineer or a travelling sales representative – ‘clocks on’ upon leaving home en route for the first call of the day, and does not ‘clock off’ until their arrival back home after the last call. So, the commuter who works on the train on his way into the office is not in working time, but the salesman who is absentmindedly listening to the radio whilst driving his car to the first call of the day is at work.
Given that the measure of working time has a number of consequences, employers will almost certainly need to make some adjustments as a consequence. Firstly, the employer is not concerned with the location of the commuter’s home: provided that they show up to work with regularity, it is of no consequence where they have travelled from. By contrast, it does become important where the field service engineer lives in relation to his area of responsibility. Moreover, there are limits on the number of working hours which an employee can be required to work unless they have elected to opt out of these restrictions. These impact at a weekly level with a 48-hour maximum, computed by reference to a 17-week average in the ordinary case. This limit will be reached all the more quickly if travel to and from home is added in. Accurate time records become correspondingly more important, as does the careful scheduling of appointments to achieve the most efficient routing around customers. There is also a potential tension with the obligation to provide a daily rest period of 11 hours, which can easily become a problem if a salesman leaves home early having arrived home in mid-evening the previous day.
The impact of the European Court’s interpretation does not necessarily mean more pay for employees, giving them a right to pay between home and the first and last calls, though time travelling between appointments after the first call of the day will be caught. In the recent Uber case, the Tribunal held that the taxi drivers begin work once they drive into the pick-up zone and switch on the app, even though at that stage they may not have collected their first fare-paying passenger. At that point the meter starts to run for the purposes of computing maximum working time limits and compliance with the obligation to pay at or above minimum wage levels.
As the economy continues to evolve with more and more varied patterns of work, the more difficult it becomes to fit such workers within conventional approaches to employment law. For so long as we remain subject to the jurisdiction of the European Court this is unlikely to be the last of the surprises.