In Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another, employees of two security system installation and maintenance companies in Spain, raised a claim in the Spanish court that their employer should be counting the time spent travelling between their homes and their first appointment as working time.
These employees did not have a fixed base because their employer had closed all of their regional offices and therefore, the employees no longer had a fixed place of work. Prior to this closure, the employees would travel from their homes to the regional office where they would collect their vehicle and instructions for the day. The time spent travelling from the regional office to the first appointment was counted as working time. Following the closure of the regional offices, the employees travelled directly from their home to their first appointment and received their instructions for each day via their mobile phone.
The Spanish Court referred the question to the ECJ of whether or not, in the case of peripatetic workers, the time spent travelling from their home to their first job should be counted as working time under the Directive. The ECJ agreed with the Advocate General's opinion that it should.
The ECJ found that the three requirements under the Directive for working time were satisfied. In particular, the ECJ found that as, prior to the closure of the offices, the employees were deemed to be carrying out their duties when travelling from their office to the first appointment, they must also be carrying out their duties when travelling from home. Also, it held that during this journey they were at their employer's disposal as they could alter the employees appointments or cancel them and the employees would be required to respond to that. Lastly, the ECJ took the view that they were working because they had no fixed place of work and werecarrying out their duties on these journeys.
The UK Government had intervened in this case due to their concerns over the possible consequences of a decision that it did amount to working time. One concern was that employees could use the time between their home and their first appointment or their last appointment and home, to carry out personal activities. The ECJ's response to this was that the Employer could use monitoring procedures to prevent this from happening.
There are potential national minimum wage issues as a result of this decision and employers affected by this decision should take advice.