Is the clock ticking on Scottish working time regulations?

Donald MacKinnon of Law at Work

Are Scottish businesses affected by the latest Spanish ruling on working time? They could be, says Donald MacKinnon of Law At Work.

Here, the director of legal services looks at how a European Court of Justice’s decision that a Spanish security alarm company has breached working time regulations could impact Scottish businesses too…

The Court (ECJ) ruled that because the firm’s home-based employees had to travel to and from their homes to visit customers that this travel time should be considered ‘working time’. As the travel time to and from the first and last appointment often reached three hours each way, the result of this time being included in the staff’s working day meant  the company was found in breach of the Spanish Working Time Regulations.
The ruling by the ECJ states that, where workers have no fixed place of work (or are home based), the time spent travelling to the first appointment in a working day and the time spent travelling home after the last appointment should be classed as ‘working time’. Time spent during the day travelling between customer sites would also continue to be classified as ‘working time’.
Depending on the distances that an organisation’s staff member have to travel from their ‘home’ to their first appointment, the length of the working day could be increased considerably.
Law At Work has already been speaking with a number of employers who will be affected including:
  • Those operating in the care sector where workers visits a number of clients throughout the day
  • Those employing travelling salespeople in a range of sectors
  • Those employing area managers, for example, who have to travel between various sites/stores
There are a number of options open to employers, many of which do not require a total over-haul of working practices or, if managed correctly, will not adversely affect the organisations bottom line.
Outlined below are four potential solutions that fear they may now breach the WTR (Working Time Regulations):
  1. Consider the place of work. Does it make more sense for the affected staff to be office based rather than home based? Note – that this may involve negotiating a change to current terms and conditions.
  2. Where employees are working more than 48 hours a week (averaged over 17 or 26 weeks in some cases), the employer can request (though not require) that an employee signs an opt-out from the 48 hours working week.
  3. Similarly, employees can agree to waive the right to an 11 hour break between shifts. Note – in this case, the agreement must be entered into collectively with the affected workforce and not just individually with the employee.
  4. A longer term solution may be to consider the work that an employee is being asked to do and to reorganise the work in a way that limits the amount of ‘working time’ e.g. scheduling the first and last visits in the day to sites closer to a worker’s home.
This is an alarm call for employers to review their staff working practices now and react to their obligations.

An earlier briefing on the changes to what constitutes business working time and what action employers need to take 

Q: Are Scottish businesses affected by the latest ruling on working time?
A: Readers may well have seen the recent media coverage on the European Court of Justice’s (ECJ) decision that travel time in some cases will constitute ‘working time’.  The decision will impact on a number of businesses and it is important that employers are aware of the implications of this ruling.
Q: What does the ECJ’s decision state?
The case concerns a Spanish business which installs security alarms. Employees of the business would travel to customer premises to carry out this work. The employees were originally based at a number of regional offices.  However, in 2011, the offices were closed and staff were instead based from their homes where they would travel to customer sites.  The distance from the home to the customer site could be considerable and involve up to three hours travel. In calculating ‘working time’, the employer did not take into account the time spent travelling by the employee to the first customer’s site and the time spent travelling back home from the final customer’s site.  The employees argued that this time should be included in the calculation of ‘working time’ and, if this was this case, the amount of travelling time involved would place the employer in breach of the Spanish Working Time Regs.
The ECJ found that, for workers with no fixed place of work (or who are home based), the time spent travelling to the first appointment in a working day and the time spent travelling home after the last appointment should be classed as ‘working time’, with the result in this case that the company was in breach of the Working Time Directive.  It was not in dispute that any time spent during the day travelling between customer sites was properly described as ‘working time’.
Q: Who might be affected?
A: Note that the decision only affects workers who have no fixed place of work or who work from home.  Time spent commuting between home and the normal place of work does not constitute ‘working time’.
The decision is likely to affect employers:
  • in the care sector where workers visits a number of different clients throughout the day
  • those employing travelling salespeople
  • those employing area managers, for example, who have to travel between various sites/stores
  • anyone who employs people with no fixed place of work
Q: How does this affect an employer’s obligations under the Working Time Regulations (WTR)?
The two provisions in the WTR that are most likely to be relevant will be:
1) the obligation that employees do not work more than an average 48 hours a week, and
2) the obligation that there should be a break of at least 11 hours between the end of the one working day and the start of the next.
Q: What about the National Minimum Wage?
A: The ECJ’s decision is concerned with the Working Time Directive (which is European legislation) and not the National Minimum Wage (NMW) Regs (a purely UK provision).  As such, the decision does not impact in any way on the NMW Regs.
Employers should note that the definition of ‘working time’ under the WTR and the NMW is different.  As the law currently stands, time spent travelling to the first appointment and returning home does not constitute ‘working time’ for the purposes of the NMW Regs, though it will do in respect of the WTR.
Q: What steps should employers take?
A: Where, following a review of current practice, potential breaches of the WTR are uncovered, there are a number of options potentially open to employers:
  • Consider the place of work.  Does it make more sense for the affected staff to be office based rather than home based?  Note that this may involve negotiating a change to current terms and conditions.
  • Where employees are working more than 48 hours a week (averaged over 17 or 26 weeks in some cases), the employer can request (though not require) that an employee signs an opt-out from the 48 hours working week.
  • Similarly, employees can agree to waive the right to an 11 hours break between shifts.  Note that, in this case, the agreement must be entered into collectively with the affected workforce and not individually with the employee.
  • A longer term solution may be to consider the work that a worker is being asked to do and to reorganise it in a way that limits the amount of ‘working time’ e.g. scheduling the first and last visits in the day to sites closer to a worker’s home

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