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In Federacion de Servicios Privados del sindicato Comisones obreras v Tyco Integrated Security SL and Another, the Court of Justice of the European Union (CJEU) has handed down its opinion, following a referral from the Spanish National High Court, that time spent travelling to and from a customer's premises at the beginning and end of the day by a worker who is not assigned to a fixed place of work constitutes working time as defined by the EU Working Time Directive, not a rest period as was claimed by the employer.
In reaching its decision, the CJEU found that, for the purposes of the Directive, the concept of working time is directly opposed to that of a rest period. There is no provision for any intermediate category between the two.
In the CJEU's view, security technicians who, following a decision of their employer to close its regional offices, began and ended their working day at home must be regarded as carrying out their working activity or duties during the time spent travelling to and from the first and last customer's premises. Such journeys were a necessary means of providing the technical services provided by the company and their nature had not changed as a result of its decision to centralise its operations, merely their departure point. Such a change did not affect the legal obligation of the workers to carry out their employer's instructions and they were not free to pursue their own interests during the necessary travelling time. They were, consequently, at their employer's disposal. Furthermore, travelling is an integral part of being a worker with no fixed place of work, and the place of work cannot be restricted to the premises of their employer's customers.
Concerns put forward that workers would conduct their personal business during the travelling time in question were dismissed. In such circumstances, it is for the employer to put in place the necessary monitoring procedures to avoid any potential abuse.
Employers of peripatetic workers operating from home should check whether they need to change the way in which working time is calculated. A change could mean that workers should be asked to agree to opt out of the 48-hour working week.