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Working Time: Travelling to Work

Subject to certain exceptions and the limited ability to vary their effects, the Working Time Regulations 1998 (“the Regulations”) impose limits on the working time of employees and other workers, including:

  • A 48 hour limit on average weekly working hours;

  • An 8 hour limit on night work; and

  • A requirement for 11 hours’ daily rest.

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The Regulations are silent as to whether travel to and from a place of work or between places of work should be considered as working time. However, guidance on GOV.uk suggests that "time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24-hour plumbers" is included in working time, but that "normal travel to and from work" and "travelling outside of normal working hours" are not.

However, the European Court of Justice has now ruled that in the case of peripatetic workers (i.e. those who have no fixed or habitual workplace), time spent travelling from home to the first customer and from the last customer back to their homes each day constitutes working time under the EU Working Time Directive (“the Directive”) – which is implemented in Great Britain by the Regulations.

The Court was not swayed by the suggestion that workers would take advantage of journeys at the beginning and end of the day to carry on their personal business: it is up to the employer to put in place the necessary monitoring procedures to avoid any abuse.

This decision will have a significant impact on the way many businesses organise workers’ activities within the above working time limits.

In contrast to the Regulations, the National Minimum Wage (“NMW”) legislation specifically addresses whether, for its purposes, time spent travelling between home and work counts as working time, and it states that it does not. The above ruling will not automatically result in employers having to count the travelling time of peripatetic workers between their homes and work locations as working time for the purposes of the minimum wage, because the NMW legislation is not based on the implementation of European law. However, the ruling might, in theory, prompt the current or a future government to amend the NMW legislation so that it is consistent with the interpretation of the Regulations on this point. That would be likely to have a very significant impact on many businesses. This is particularly so in sectors such as care, where levels of pay are already at or near the legal minimum based on what is currently recognised as working time – or in many cases below it, due to a current failure by many employers to pay their employees at NMW rates, or at all, for time spent travelling from one appointment to the next, on standby at or near the place of work and/or on certain “sleeping shifts” that count as working time.

A further potential consequence of first and last journeys of the day being treated as working time for peripatetic workers for the purposes of the Regulations is the application of pressure by or on behalf of such employees, including through trade unions, for such time to be remunerated – including potentially, where applicable, at higher rates associated with unsociable working hours.