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Payment for travelling to work

Updated: Feb 16

Regular readers will recall that two years ago, in a case known as Tyco, the European Court of Justice ruled that workers who drive around for a living and don’t have a fixed base should count the time spent travelling to their first job and the time travelling home from their last job as working time.

Now that judgment has been used to support a similar claim by a UK worker.

The case was East v Valentine. Mr Valentine’s job was that of support worker, giving assistance to disabled people in the community.

To carry out his job, he would travel from place to place by car. Like the workers in the Tyco case, he had no fixed base. At the beginning of a period of work, he would drive directly from his home to his first assignment, and when he had finished work he would drive directly home from his last assignment.

Using the Tyco case to support his argument, Mr Valentine said that the time he spent travelling to and from assignments should count as working time. The fact that he was not being paid for this time was an unlawful deduction from wages, he said.

The judge at the Employment Tribunal agreed with him. However, his employer decided to appeal the judgment and they had a very good reason for doing so.

The Employment Appeal Tribunal said that the Tribunal judge had not looked at the detail of Mr Valentine’s employment contract, wherein it set out his working hours and pay, stating specifically that the time it took employees to travel from home to their first place of work and from their last place back home didn’t count as working time. Also in the contract was a clause that covered payment for additional hours. It said that they would be counted as time off in lieu and if payment was made for them, it would only be done in what the contract called “exceptional circumstances”.

Taking this into account, the Employment Appeal Tribunal overruled the Tribunal’s decision on unlawful deductions. Although the Working Time Regulations and the European Directive that produced them confirmed that travel to and from assignments counted as working time, there was nothing in the European Court of Justice’s decision to say that a statutory right to payment existed as a consequence.

What should employers do?

It’s a good idea to revisit your employees’ contracts of employment to verify that what they say is what you want them to say. You are on shakier ground if a claim similar to Mr Valentine’s arises and there is no specific clause in the contract that defines working time and what will and will not be paid. The best course of action if you’re unsure is to seek expert legal advice as soon as possible. Even if this means redrafting your employment contracts, it’s better to be safe than sorry. Expert legal advice will also help you with introducing new contracts in a way that reduces the chance of employee claims against you.

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