Travelling time is ‘working time’ for workers with no fixed place of work.
Employment lawyers are divided over any potential adverse effect on agencies of a working time ruling handed down by the European Court of Justice yesterday.
The ruling means time spent travelling to and from first and last appointments by workers without a fixed office should be regarded as working time. The additional working hours could put some agency workers in breach of the European Working Time Directive. The directive aims to ensure no employee in the EU is obliged to work more than an average of 48 hours a week.
The ruling came in a case brought by employees of Spanish security company Tyco, who argued time travelling from home to their first appointment should be classified as work, in accordance with the directive.
Commenting on the ruling, Jacqueline McDermott, consultant solicitor at law firm Keystone Law, told Recruiter in a statement that employers and agencies operating in certain sectors would still feel the impact of the ruling, as workers will need to be paid for the additional time.
“This will obviously have a substantial impact and increase costs for employment businesses who provide agency workers. A number of sectors will be particularly affected, including care workers, delivery drivers, maintenance staff etc.”
According to McDermott, both agencies and employers could also find themselves facing backdated claims from workers. “Possibly of more concern is the likelihood of claims from workers for unpaid wages and/or unlawful deduction of wages. These claims must be brought within three months of the last ‘deduction’ or they are statute barred. However, there is no limit on how far back the claim can go.”
But David Whincup, partner and head of the London labour & employment team at law firm Squire Patton Boggs, told Recruiter as the directive relates to health & safety rather than worker pay, there is no obligation on employers to pay the additional working time as an extra sum of money.
“The additional working time may place a very limited number of UK employers in breach of the Working Time Regulations’ average 48 hours limit and/or the requirement for 11 hours daily rest, but only those whose staff are already so close to that limit that this marginal extra time will tip them over it.
“In principle, compensation could be awarded where such breaches arise, but this will be extremely limited and generally not worth the costs of bringing the claim in the first place,” he added.
“While recruiters and staff agencies will therefore want to consider their own respective businesses and whether or not any of their employees might fall into these categories, the Tyco decision is unlikely to have a material impact on their bottom line.”
Meanwhile, Julia Kermode, chief executive of professional employment service body the Freelancer and Contractor Services Association (FCSA), described the timing of the ruling “interesting” given HM Revenue & Custom’s ongoing travel & subsistence consultation, which proposes banning tax relief on travel expenses for workers employed by umbrella companies.
“Much of the current T&S consultation discusses ‘fairness’ and ‘levelling the playing field’, so if permanent employees are paid for travel, logically it should also apply to temporary/contract workers fulfilling the same role, otherwise they would be disadvantaged.
“It seems likely that there will be many wide-ranging ramifications and as the trade body for service providers to freelancers and contractors, we will monitor developments and issue guidance as appropriate,” she added