Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The WTR set minimum health and safety requirements in areas such as:
- rest breaks and rest periods;
- limits on the number of hours to be worked on average each week;
- annual leave; and
- limits on night working.
The WTR define “working time” as any period during which:
- the worker is working;
- at the employer’s disposal; and
- carrying out his activity or duties.
Advocate General’s decision
The Advocate General has recently given a view that time spent by “peripatetic” workers (i.e. those workers who do not have a fixed or habitual place of work but are required to work at different premises each day, for example care workers or trades people) travelling to their first place of work and back to their home from their last appointment counts as working time under the WTR.
The opinion concerned two security system installation and maintenance companies who install and maintain intruder detection and anti-theft systems for businesses. Their technicians provide services across many of Spain’s provinces and each technician is assigned to a particular province or area. The technicians are assigned calls to make via their mobile and can work both in their usual province or sometimes further afield.
The companies did not count the journey from home to their first appointment or from their last appointment home as working time, but did include the time spent travelling between appointments. This point was referred to the Advocate General for an opinion.
The Advocate General disagreed with this approach and was of the view that the three criteria to be satisfied in order to be classed as working time were met. For peripatetic workers who are required to work at different premises each day, travelling is an integral part of their work and is therefore inherent in the performance of the activity.
What does this mean?
This is an opinion of the Advocate General, which means that it is not binding in the European Court of Justice (ECJ) or the national courts and tribunals. However, opinions are usually followed by the ECJ.
If this is followed, employers will have to take travel time to and from the first and last appointments into account when calculating:
- if sufficient rest breaks and periods have been provided;
- annual leave accrual;
- compliance with the night working limits; and
- if the 48 hour average working week (over a 17 week reference period) has been complied with.
What about the National Minimum Wage?
Confusingly, the WTR contain a different definition of what constitutes working time compared with the National Minimum Wage Legislation. This means that currently the national minimum wage position is not affected and if the decision is followed, employers would not need to start taking these journeys into account when calculating if the national minimum wage has been received.
For more information
For more information about the above case or advice on the WTR or the national minimum wage generally, please contact Faye Rush
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