How/when does recent ECJ ruling on driving to work come into effect here??

[misterbarlow]

I work for a utility, driving to customers houses all day, from my house, and back home at the end of the day, my hours are 8-4 M-F, and the long standing company stance has been they want us on site at first house at 8, no matter where that is, could be in your street, or 35miles away, and leaving the last job at 4 to then drive home again. Unlike someone with fixed workplace, one day my travel in my own time could be 5mins, the next day 65mins. Likewise returning home.
Following the recent ECJ ruling for such employees with no fixed office, that driving to the first job and back from the last IS now work, some guys have started leaving the house at 8am, and leaving last job to be pulling up at home at 4pm.
We are tracked on van trackers and our tablets, and management are kicking off about the times people are starting and finishing.
We had yet another meeting today with regional managers, where the company reiterated its stance with an email from HR stating that this ECJ ruling is not UK law yet, so as far as they are concerned, it means nothing for now to us, it applies only to the case that was heard and only sets a president, and its business as usual.
Until the UK changes its law, and the company reviews its policy and instructs us otherwise, we are still wanted on site at 8am.
Can anyone advise further on this??
Once the ECJ made that ruling, how/when will it apply to us??
Thanks.

[stevemLS]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

The ECJ ruling is of no direct consequence, it is not binding on domestic cases although they always pay due respect to it an usually follow it.

Different jurisdiction but European Court on Human Rights said our ban on prisoners voting was an infringement of their rights in 2005 and UK has in the intervening 10 years essentially said sod off.

Whilst this is only an essay it is a readable and, I think correct, discussion of judicial precedence here http://www.lawteacher.net/free-law-e...of-justice.php

I think your guys that are leaving their house at 8am are on thin ice unless and until UK law is changed.

[misterbarlow]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Thanks for taking the time to reply....
I posted in more than one place, and have had this other reply which seems contradictory to yours, so now I am even more confused...


The ECJ ruling has immediate effect.
This mean that UK courts when faced with with a case in which the particular law is relevant will apply the ECJ ruling.
So in effect it is already law in the UK.
The UK government does not need to change the law -the ruling merely clarifies in certain circumstances what the term working hours means.
So when working hours are calculated in relevant circumstances such travelling time will be included. If an employer refuses to do so they can be sued.

[Amethyst]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

In some ways it directly affects, in others it doesn't. Presumably you aren't opted out of the working time directive? You work 5 days a week? 8 to 4 - which is 8 hours. So 40 hours over the week. The maximum under the WTD (unless opted out) is 48 hours, so there's 8 hours of travel time available - so an extra hour and a half a day ish available for travelling.

Minimum Wage is a UK Law which is separate from the EU WTD. The WTD doesn't require pay, except for holiday pay. I think the court expressley said the ruling on travel time for mobile workers didn't relate to pay ( I'll check in bit). I think that's where the confusion comes in, it doesn't mean you are entitled to pay for travel, just that travel can be counted in your working time hours.

Are you paid hourly ( do you do timesheets etc) or salaried ? What does your contract state about working hours and pay ?

( I also agree that the guys at your work leaving home at 8 and being home by 4 are on very thin ice )

[Amethyst]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

47 That conclusion cannot be called into question by the argument of the United Kingdom Government that it would lead to an inevitable increase in costs, in particular, for Tyco. In that regard, it suffices to point out that, even if, in the specific circumstances of the case at issue in the main proceedings, travelling time must be regarded as working time, Tyco remains free to determine the remuneration for the time spent travelling between home and customers.

48 It also follows from the case-law of the Court that, save in the special case envisaged by Article 7(1) of Directive 2003/88 concerning annual paid holidays, that directive is limited to regulating certain aspects of the organisation of working time so that, generally, it does not apply to the remuneration of workers (see judgment in Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 38, and orders in Vorel, C‑437/05, EU:C:2007:23, paragraph 32, and Grigore, C‑258/10, EU:C:2011:122, paragraphs 81 and 83).

49 Accordingly, the method of remunerating workers in a situation such as that at issue in the main proceedings is not covered by the directive but by the relevant provisions of national law.

50 In the light of all the foregoing considerations, the answer to the question asked is that point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.

my emphasis

( Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, - ECJ )

[R0b]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Thanks for taking the time to reply....
The ECJ ruling has immediate effect.
This mean that UK courts when faced with with a case in which the particular law is relevant will apply the ECJ ruling.
So in effect it is already law in the UK. The UK government does not need to change the law -the ruling merely clarifies in certain circumstances what the term working hours means.
So when working hours are calculated in relevant circumstances such travelling time will be included. If an employer refuses to do so they can be sued.

Have to agree with this comment above. Hierarchy of the courts are EU > Supreme Court > Court of appeal etc. and so by saying that the ruling is not binding and has no effect is simply incorrect as far as precedents is concerned. So long as the UK are in the EU then EU case law, where relevant is binding on domestic courts. The courts can however, depart from the ruling if the case at hand can be distinguished.

The ruling does affect workers of no permanent base and relates to working hours and not wages as correctly stated (however it is very likely at some point in the future remuneration will be challenged).

From what you are saying about leaving the house at 8am workers could be mis-interpreting the case as if there is a practice that workers must arrive at customer premises by 8am and that has been custom and practice for a number of years then there could be an argument that it may be implied into the contract if it is silent on the matter (or where policy/guidelines don't dictate). However, let's just assume that employees are arriving at customer's premises for 8am. If that journey takes two hours and the employee leaves at 6am then those two hours travelling time will count toward working hours as the employees are carrying out duties during this time travelling - It was also noted that employees are free to take any route they wish. Employees cannot however, use this travelling to for personal interests and will not count towards working hours if they do so.

One way to get around this issue is for employers to re-arrange an employees appointment schedule, meaning that appointments are much more closer together in terms of distance as opposed to being all over the place and therefore increasing the actual amount of time an employee does any physical work other than driving.

the HR team might want to get some legal advice on this as they could be lining themselves up for multiple claims if they dismiss employees for the wrong reasons. As I said though, there could be grounds for disciplinary/dismissal if policies and procedures provide for employees being on site at 8am.

For them to say that it is not binding is just not correct, the ruling is made with reference to the Working Time Directive and so it does have authority to bind the UK.

travel time to the first customer of the day, and travel time home from the last customer, should count as "working time" for the purposes of the Working Time Directive

@stevemLS

Different jurisdiction but European Court on Human Rights said our ban on prisoners voting was an infringement of their rights in 2005 and UK has in the intervening 10 years essentially said sod off.

Just FYI, I believe the EU have concluded so far that prisoners of minor offences should have rights to vote but is still up in the air and could be extended - failing to adhere to EU law could have implications on domestic courts such as fines.

[misterbarlow]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Ah ok so I think we've mis understood what the ruling covers then...
We all thought it meant driving to work is now work, as in we now get paid when we start the van and can now drive to our first job in company time, and get paid for it, hence the guys leaving at 8 now..
So am I correct in thinking then, that all it means is that driving to work is now work, only in relation to how many hours a week you work under the 48hr maximum week directive??
so if i do a 37 hour week and drive one hour to my first job every day, all the ruling is now saying is that I am actually doing a 42hr week, thats all.... And they cant force me to do more than 48!!
Is that correct???

[Amethyst]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Pretty much, in my understanding of it, yes. Basically you guys are wrong, and work is wrong , so meeting in the middle... just carry on as normal ...basically. Unless you have to drive an hour each way every day ( TO first job, and home from last job), you're within WTD regs.

Do you guys have copies of your contracts at all, might be worth a mooch over ?

[judgemental24]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Interesting,

To begin with to be pedant there is no ECJ
It is the CJEU

We are taliking of two different types of law, it is Treaty law that has to be implemented with immediate effect on the member state. R (Factortame Ltd) v Secretary of State for Transport

With applications brought to the court such as the Working Time Directive as an example, member states can negotiate "Opt outs" while still complying with the spirit of the judgement

The UK as an example is the only member state to have the maximum 48 hour working week opt out provision.

As always these judgements take time to be incorporated into domestic legislation. The UK as another example drags this out and faces punitive fines before finaly adopting the judgment as the decision reached is through a court of law and will be showing contempt for the law otherwise.

A good example will be Foster v. British Gas and Emanation of the state.

But to answer your question:

Until the Working Time Regualtions are officially amended you carry on as though nothing has changed

[judgemental24]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

With the issues of prisoners voting the UK used the EU Doctrine:

"Margin of Appreciation" in its failure to incorporate the judgement into domestic legislation

That was the ECtHR and NOT the CJEU

They are two totally different seperate institutions

[Berniethebolt]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

There are a lot of misconceptions about both the ECHR and the Europen court largely brought about by certain areas of the media . Our parliament is still sovereign and no one can force them to do anything . There are of course occasions when not doing something would be incompatible with out membership of the EU. Many of the European laws have caveats in them that allow a certain amount of wriggle room for individual states .

If anyone remembers the BSE crisis , the French refused to import British beef even though it was against the EU treaty , what happened to them, did they get thrown out of the EU , no they carried on doing what the French do which is their own thing . I think they maybe got fined but whats a few million Euros in the grand scheme of things .

I agree with everyone else that taking a decision to leave home at 8 and return at 4 without company approval is just pushing it

As for a change in UK law, well Scotland might do something but our present government are very unlikely to do anything that benefits the worker at the expense of business

[judgemental24]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Now Now Bernie, Best not bring Dicey into this:tinysmile_twink_t2:

But you are bang on, Not matter what the likes of the Daily Heil/Express/Scum tell you, Parliament is and always will be Soverign.

If we do not agree with the EU we can leave at any time by simply repealing the European Communities Act

[R0b]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Without straying off and talking about whether parliament still reigns supreme, the decision does not require any change in the law, it merely clarifies the WTD. Of course if parliament aren't happy with that then of course they can change the law if they so wish to the wrath of the EU which will go full circle as usual unless UK opts out of the EU. The UK courts will usually follow decisions made by EU cases unless there is some good reason to deviate from that decision.

So for the purposes of the question, leaving at 8am and returning by 4pm will grounds for disciplinary if company policy dictates but if such employees working hours amount to 48 hours before their contracted number of days is fulfilled due to travelling time between jobs, then based on this ruling, employers can do absolutely jack all to force them to work the extra day(s).

Until such a case comes before the courts, there is no way to determine exactly how this will apply but it is likely that this will apply to a small number of employees.

[Trev1234]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Judge - you know your stuff!

[judgemental24]

Re: How/when does recent ECJ ruling on driving to work come into effect here??

Judge - you know your stuff!

Blame the Open University:tinysmile_grin_t: