Travelling to the first and from the last daily assignments may be considered working hours but whether workers are compensated depends on the employment contract.
Authority/Law/Department: Employment Appeal Tribunal, Working Time Regulations 1998, SI 1998/1833, Thera East v Valentine (UKEAT/0325/16/DM), Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security  IRLR 935
• The Working Time Regulations 1998 (WTR) defines working time where a worker is both working and at his employer’s disposal and carrying out his activities or duties during any period which he receives relevant training and any other period to be treated as working time under an agreement between worker and employer.
• Peripatetic workers (those who do not have a fixed or habitual place of work) travel to their first assignment and from the last assignment of the day under their employer’s instruction and this is not ‘free time’. Therefore this travel time is likely to be regarded as ‘working time’ under the WTR.
• In this case, the claimant worked as a Support Worker for the respondent charity in the disabled community using his own car to travel to assignments.
• His contract stated that 1815.07 hours a year would be paid for and his working hours did not include the time spent traveling to his first assignment and from the last assignment of the day however he claimed this was working time.
• He sought to argue ‘time credit’ for those hours and mileage expenses as his contract stated that any hours worked in excess of 1815.07 would be given as time off in lieu.
• The employment tribunal held that the travel time was working time and therefore unlawful deductions from his wages had been made.
• On appeal, the EAT stated that as the claimant had not advanced a claim of unlawful deduction of wages, it was not for the tribunal to find on the claimant’s behalf in relation to a claim not advanced by him therefore that finding of unlawful deduction of wages was set aside.
• Secondly, the tribunal judge had looked at the IDS Handbook in isolation to determine right for payment for additional hours worked and therefore had not considered the contractual position. The contract was clear that the travel time spent would not be remunerated.
• Therefore whilst the working hours definition is clear, advisors should look to the contract of employment to determine whether payment is due in respect of those working hours. It is also prudent to note that there was no claim for minimum wage and therefore there was no decision as to whether the national minimum wage provisions would apply.
For further information, please contact Julian Outen, Head of Employment. He is based in our Ipswich office and can be reached on 01473 556900 or email@example.com