In 2015 the European Court of Justice ruled that time spent by an employee without a fixed base travelling to and from his first and last place of work should count as working time. The decision was well publicised at the time and the Claimant, Mr Valentine, heard about it. Mr Valentine was a support worker and he would drive directly from his home to his first appointment, and at the end of the day he would drive directly home from his last appointment. He felt, unsurprisingly, that this was working time and he should be compensated for it.
When he brought his claim to the Employment Tribunal the remedy he sought was to accrue time off in lieu of his travel time. Mr Valentine's contract specifically stated that travelling time to and from his first and last place of work was not working time and included a detailed clause confirming additional hours would generally be taken in lieu and would only be paid in "exceptional circumstances".
The Employment Judge who heard the claim asked Mr Valentine about whether he was making a claim for unlawful deduction of wages. He confirmed that he was not and made no attempt to seek to amend in such a claim. However, the Employment Judge found that the time he was claiming for was indeed working time following the decision of the ECJ and went on to find that the employer had made an unlawful deduction from wages.
The employer appealed to the EAT who upheld the appeal. Firstly, on a procedural point, the EAT found that it was not open to an Employment Judge to make a finding about a claim - in this case for unlawful deductions - in circumstances where no such claim had been pled in either the ET1 or during the Tribunal. The EAT also decided that the terms of the contract made any contractual claim for payment impossible - the terms regarding payment for additional hours were clear - they would only be paid in exceptional circumstances.
This claim may well have left the Employment Judge at first instance in a bit of a quandary - having found that the travel time was indeed working time he may have wanted to provide the Claimant with a remedy but he had no authority to order that time off in lieu be given. As a finding that time is working time does not give rise to any statutory right to payment the only other way to compensate Mr Valentine financially was to assume he had a contractual right to pay. However, the drafting of the contract ruled that out. It may be that Mr Valentine understood this and that was why he sought time off in lieu. However, unfortunately for Mr Valentine, Employment Judges can only order remedies if they have the statutory authority to do so, and no such authority exists to grant the remedy he sought.