Journey time = Working time?
In principle, journey time (home – work and back) is not working time, in particular since the employee does not start work until he reaches the workplace, and the employer has no control of where the employee lives, which the latter chooses himself. However, a European Court of Justice (“Court of Justice”) judgement has recently made an exception to the principle that journey time is not working time (European Court of Justice, 10 September 2015, case C-266/14).
ECJ definition of “working time”
For the Court of Justice, “working time”, is the journey time spent by workers with no fixed or habitual place of work travelling each day between their homes and the premises of the first and last customers designated by their employer.
Such a ruling must be put into context since the Court of Justice’s position is strictly and closely linked to the very specific facts of the case, and only concern employees with no fixed or usual place of work.
A company engaged in the installation and maintenance of security systems had always applied the following principles up until 2011:
- Journey times from home to the provincial offices were not counted as working time;
- Journey times from the provincial offices to the job locations (customers) were considered as working time.
With effect from 2011, the company, having decided to close all its provincial offices, decided unilaterally from then on not to count all journey times between the workers’ homes and the premises of the first and last customers as working time. Such journeys could exceed 100 km.
The workers were notified by mobile phone a few hours before their appointment of the journey they had to make and the specific services they had to provide for the clients.
In such circumstances, the Court of Justice ruled that the home – work journey is to be considered as working time:
- for employees with no habitual or fixed place of work,
- when the employees are given a list of the work to be performed and the order in which it is to be done, to be followed by the employees, as well as a timetable for the various jobs; and
- to the extent that the fact that the workers begin and end their journeys at their home results directly from a decision made by their employer and not from the workers’ wishes
This judgement does not call into question the practical principle under which home – workplace journeys are not counted as working time, except in the specific case described above.