You’ll remember that on 19 June I wrote about Advocate General Bot’s guidance to the CJEU in a Spanish case about working time. In a nutshell he advised that travelling is an integral part of being a peripatetic worker so when service engineers drove from their homes to their first call of the day (and when they travelled home after their last call of the day) they were to be treated as working. Predictably the Court recently followed the AG’s advice. British businesses are now grappling with the implications and it’s the second most popular enquiry in my inbox (after restrictive covenants).
Some people have asked if they can distinguish their business from Tyco by paying a car allowance instead of providing a vehicle, not prescribing routes and giving their workers greater freedom over rota’s and call schedules. It’s a nice try but in my opinion it won’t work because the core issue is the peripatetic nature of the work. There might be an argument if workers are required to go to a regional hub at the beginning of each day from which they’re then assigned a call sheet but I think that’ll probably fall foul of a purposive interpretation of the judgement and the Working Time Directive which sits behind it. In my view there’s very little wriggle room in the judgement, but what about the National Minimum Wage Regulations?
The Tyco decision is all about working time and doesn’t concern itself with pay, much less the labyrinthine construct which is our minimum wage regulations. Regulation 34 of this years version of the regulations says that travelling between home and work by time workers (as defined in the regulations) is not working time and does not therefore attract the current minimum rate (£6.70 for adults). So we have a prima facie conflict between the CJEU’s interpretation of the EU Working Time Directive and UK regulations. We’ve been down this road before and, surprise surprise, it was in the context of working time; remember Kigass then Stringer and many others in the great holiday pay debacle which has been trundling along for more than a decade?
Is this the start of another 10 years worth of regulatory uncertainty? I suppose the Chancellor’s enthusiasm for higher wages might lead to an amendment to the minimum wage regulations bringing them into line with the CJEU but equally I suppose pigs might fly. Legal guidance will depend on the facts of each case but if you employ peripatetic workers you should be taking a close look at this now, and bear In mind the increase in the minimum wage for over 25’s which is coming next April.