Employers have taken a bit of a beating recently in relation to working time and holiday pay issues, and it doesn’t look as though this is going to ease up any time soon.

The issue of whether travel time to and from work for workers who do not have a fixed place of work should be counted as working time has been referred to the Court of Justice of the European Union (CJEU). They have given an initial indication of which way this may go when the final decision is delivered later this year.

The case in question relates to a security firm in Spain who have a number of employees who travel from their home to different clients throughout the day. They are not required to report into a head office and are only told the day before where they will be required to travel to. The employees have argued that the time spent travelling to their first job and from their last job should be counted as working time.

The initial opinion of the Advocate General, whose role is to consider cases before the CJEU where a new point of law is raised and deliver an impartial opinion to them, has stated that such travel time should be treated as working time. The opinion states that travelling workers who have no fixed or habitual workplace should be able to count the time spent travelling from home to the first job and from the last job back to their homes as ‘working time’ under European legislation governing working time. For such workers, travelling is an integral part of the work and is required in order to provide the service to customers, meaning that it should be regarded as forming part of the workers’ activities.

If this opinion is followed by the CJEU it may have a number of consequences, including:

• That care will have to be taken to ensure that adequate rest breaks are provided to affected employees, since their working days will start earlier and end later; and
• That the 48 hour working limit may be inadvertently breached if an opt-out agreement is not in place.

This is relevant to the UK since legislation governing working time, rest breaks etc. stem from European legislation. Any decision on the interpretation of European legislation will have a direct impact on how our own domestic legislation operates.

The Advocate General’s opinion is not binding on the CJEU. However, this does give an indication of which way the decision may go. We shall of course provide a full report once the final decision is given.