What has the minimum wage got to do with the Working Time Directive? Well, these are technically separate issues, but they’re about to come together in a way which is going to have a serious impact on employers.
Minimum wage – when pay does not include travel time
At one end of the judicial spectrum, a careworker is claiming before the employment tribunal that not being paid for the travel time between the clients that she has to look after takes her below the minimum wage. Her case goes like this:
- She has to drive several hours per day to make her calls over a wide area, but receives only a petrol allowance for that.
- So she’s only paid for the time spent with clients, but since she must travel between them she should be paid for that time too.
- Otherwise her hourly rate of pay, averaged out across all the time she’s with clients or travelling between them, is less than the minimum wage.
Now we’re taking nothing for granted, and we happen to know that this case is part of a rather contentious investigation which is likely to be challenged on several levels. But just for the moment, and for the sake of argument, let’s assume that all the facts are as claimed.
Working time – when travel time is not counted as working
At the other end of the spectrum, we’re waiting for the final decision from the European Court of Justice (ECJ) on whether the maximum working week – as defined by the Working Time Directive – includes time spent by a mobile worker travelling to the first client of the day.
- In this sense, a mobile worker is someone who is neither home-based nor based in an employer’s premises. So maybe someone like an on-call engineer, whose entire working time is spent at clients’ homes sorting out their heating or plumbing, and when each job is finished they switch on their satnav and move on to the next client.
- This case has arisen in the context of a worker in Spain who is a specialist technician, and who has to visit his employer’s customers on premises which
may be hundreds of miles apart.
- The Advocate General (a sort of specialist European lawyer who advises the ECJ, which is composed of judges drawn from the member states of the EU) has already given his opinion that the time spent travelling to the first client of the day should come within the working week.
- This is a little different to the generally accepted principle that travelling to and from work at the beginning and end of the day is not part of your working time. So the exception will only apply to that limited category of workers – for now. But it isn’t much of a leap to say that it could easily apply to other sorts of worker, particularly those who are on the road a good deal, even if they are technically based at home or in the office.
- In any case, although the ECJ usually follows the Advocate General’s opinion, it certainly doesn’t have to, so it’s not a foregone conclusion. But it seems fairly clear which way the wind is blowing.
Where does that leave us?
Well, nowhere just yet – because neither case has been finally decided.
But it seems to us at Simplify the Law that both of these people have arguments in their favour. If the decisions go their way, it could signal a change in understanding which would add to the bill of many employers.
In combination, the result might mean that you have to (a) calculate the working day and the working week so that they include the first journey of the day, and (b) always include travel time between client visits – both in terms of pay and counting the hours.
Good employers shouldn’t need telling.