Donald MacKinnon: Time to work on staff timing

The European Court of Justice (ECJ) decision that a Spanish security alarm company has breached working time regulations could have a big impact on Scottish businesses.

Donald MacKinnon, director of legal services at Law At Work

The ECJ ruled that, because the firm’s home-based employees had to travel to and from their homes to visit customers, 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.

This ruling could affect a surprisingly wide number of businesses, which could face being in breach of the UK working time regulations and having to re-structure staff working practices.

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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. The provisions that are most relevant to this ruling include their obligation to ensure employees do not work more than an average 48 hours a week, and that there should be 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.

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

Initially we are encouraging our clients to undertake a review of their current practices in order to ascertain where they 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 overhaul of working practices or, if managed correctly, will not adversely affect the organisations bottom line.

Outlined below are four quick potential solutions for organisations that fear they may now breach the 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”, for example 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 who they believe are exploiting workers with no fixed base, now would be a good time for employers to review their staff working situations and react to their obligations.

Donald MacKinnon is director of legal services at Law At Work