British small and medium-sized businesses need to start thinking about how this regulation will affect them.
The European Court of Justice (ECJ) has recently ruled that because a 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 court decided, the result of this time being included in the staff’s working day meant the company had breached the Spanish Working Time Regulations.
This ruling could affect a surprisingly wide number of businesses including small and medium-sized enterprises, each of which could be in breach of the UK Working Time Regulations and therefore forced to re-structure staff working practices. Business leaders need to start thinking about this regulation now to ensure that they don’t find themselves on the wrong side of the law.
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”.
Employers have a variety of responsibilities to staff under the Working Time Regulations (WTR). The provisions that are most relevant to this ruling include: obligation to ensure employees do not work more than an average 48 hours a week and the need for a break of at least 11 hours between the end of one working day and the start of the next.
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. SMEs need to think about this when organising staff responsibilities and creating rosters.
At Law At Work we’ve already been speaking to a number of smaller and medium-sized employers which will be affected. These including those operating in the care sector where workers visit a number of clients throughout the day, those employing travelling salespeople in a range of sectors and others which employ area managers, for example, who have to move around between various sites/stores.
Initially clients are being encouraged to undertake a review of current practices in order to ascertain where each might be in breach of the Working Time Regulations following this new ECJ ruling.
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. SMEs need to start taking advice and reviewing operations.
Organisations should consider these four quick potential solutions if there are fears of breaches of the WTR. The first is to consider the place of work. Does it make more sense for the affected staff to be office based rather than home based? It’s worth noting that this might involve negotiating a change to current terms and conditions.
Second, SMEs should also look at 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, smaller and medium-sized companies should consider how employees can agree to waive the right to an 11 hour break between shifts. In this case, the agreement must be entered into collectively with the affected workforce and not just individually with the employee.
Finally, a longer-term solution that SMEs should think about is 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”. For example, this could involve scheduling the first and last visits in the day to sites closer to a worker’s home.
With unions believing that this decision is a blow to employers which are believed to be exploiting workers with no fixed base, SME employers should review staff working situations and react to their obligations immediately.
Donald MacKinnon is director of legal services at Law At Work.
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