The European Court ruled that the time spent by mobile workers – that is, those who have no fixed place of work – travelling between home and their first and last place of work each day counts as ‘working ‘time’ under the Working Time Directive and Working Time Regulations.
The case was brought by a group of technicians employed to install and maintain security equipment at the premises of their firm’s customers.
This ruling now applies to all UK remote workers.
The 48-hour week
The 48-hour week is one of the best known provisions of the Working Time Regulations. The average weekly hours figure is calculated over a prescribed reference period, usually 17 weeks. The regulation states ‘a worker’s working time, including overtime, in any reference period, shall not exceed an average of 48 hours for each seven days.’
It is important to note that the new legislation only applies to what counts as working time under the European Working Time Directive and the UK Working Time Regulations, it does not govern pay. Rather, it is concerned with the organisation of working time including average weekly working time, rest periods and rest breaks and minimum periods of paid holiday.
Under the UK’s National Minimum Wage Act and Regulations, the general position is that travel time between home and a place of work is excluded from the obligations to pay the NMW, including for mobile workers.
The only exception to this rule is for workers who do “unmeasured” work. These are workers who are not paid by reference to the hours that they work, do not have set hours, are not paid an annual salary or are not paid by reference to their outputs. This is a ‘catch-all’ category which will not typically apply to mobile workers.
So although you must now count travelling as part an employee’s average weekly working time it does not necessarily mean they receive extra pay.
Opting out of the Working Time Directive
An employee can still opt-out of the Working Time Directive requirements for a 48-hour working week. As the average weekly hours includes overtime (as well as all travel time), opting out can give greater flexibility in working overtime.
You cannot however force an employee to opt-out.