Directive 2003/88/EC of the European Parliament and of the Council of November 4th 2003 concerning certain aspects of the organisation of working time (the “Directive”) defines working time as “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties (…)”. A rest period is any period which is not deemed working time.
A recent case before the European Court of Justice (the “ECJ”) concerned a company employing technicians to install and maintain security equipment on premises located within a geographical area assigned to them, meaning that they did not have a fixed place of work.
Previously, the employees might have used a company vehicle for travelling from the company’s office to the various places of work and for returning to the company’s office at the end of the day.
During that time, the employees’ daily working time started when they arrived at the office and ended when they returned to the office in the evening. Hence, the travel from the office to the first customer was considered as working time, as well as the travel from the last customer back to the office.
However, in 2011, the company closed some regional offices and assigned all of its employees to the central office in Madrid.
Since then, for calculating the number of daily working hours of the concerned employees, the company took into consideration the time elapsing between when its employees arrived at the first customer and when they left the last customer, ignoring the time spent travelling between home and customers.
"The question that arose in this case is whether the time spent by the employee travelling at the beginning and at the end of the day must be regarded as working time within the meaning of the Directive?"
In its judgment, the ECJ declares that, where employees do not have a fixed or habitual place of work, the time spent by those employees travelling each day between their homes and the premises of the first and last customers constitutes working time within the meaning of the Directive.
According to the ECJ, since these employees carry out their duties over the whole duration of the journeys, they are acting on the instructions of the employer and are at the employer’s disposal for the whole time of the journeys. Therefore, they are not able to use their time freely and pursue their own interests.
In this case, the fact that the employees begin and finish the journeys at their homes stems directly from their employer’s choice to close some offices and not from the desire of the employees themselves. Consequently, travelling is a part of the employees’ duties, and the time spent travelling between home and customers must be considered as working time. Indeed, the place of work of the concerned employees cannot be reduced to the physical areas of their work on the premises of the employer’s customers, especially since the journeys of the employees at the beginning and at the end of the day to or from customers were regarded as working time before the closure of the regional offices.