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2nd October 2018

Working 9-5: Does Working ‘On the Go’ Count As Working Time?

Commuters are regularly using travel time to deal with work emails, so should their journeys between home and work be counted as part of the working day?

   

It is no secret that smartphones and mobile internet access have caused a blurring of boundaries between work and personal life, but according to researchers this now also applies to the commute between home and work. Wider access to Wi-Fi on trains and use of smartphones has, according to a study undertaken by the University of the West of England, led to many of us dealing with work emails whilst undertaking the journey between our home and our place of work.

   

The study, which examined 5,000 rail passengers on commuter routes, found that 54% of commuters using trains’ Wi-Fi were sending work related emails, whilst others were using their own mobile phone connections for the same purpose. Those travelling to work were catching up with emails ahead of the coming day, while those returning home were finishing off work not completed during regular working hours.

   

Some working parents felt that sending emails while commuting allowed for a “transition” period, where they switched roles from being part of a family to part a working environment. There were other commuters who liked the “buffer” of being able to work when travelling. But the findings have raised questions about whether the journey between work and home should be recognised as forming part of working hours, if work is being undertaken on that journey. Recognising the commute as forming part of working hours would, no doubt, mean that businesses would want increased surveillance and accountability for how commuters are spending that time.

Currently neither European nor national legislation say anything about whether travel between home and a place of work should be considered as working time. Assuming there is no relevant agreement in place covering the issue, the question is therefore whether all three limbs of the definition of working time can be said to be satisfied. This requires that the worker must be working, at the business’ disposal, and carrying out their duties or activities. Time spent travelling between home and work would therefore not generally be viewed as working time, even if the worker uses some of the commute to carry out work-related activities. A business has no control over how long a worker spends commuting between their home and work as this will depend on where they live. The worker is, as a general rule, not at the business’ disposal until they reach their workplace.

   

Non-statutory guidance suggests, however, that for peripatetic workers who are not assigned to a fixed place of work (for example travelling sales reps), time spent travelling from their home to their first assignment, and from their last assignment back to their home, should constitute working time. This is because the journeys are subject to the authority of the business, which can choose to change the order of customers or cancel an appointment, or require workers to call on an additional customer on their journey home. The workers are therefore at the business’ disposal for the purposes of the definition of working time-they act under its instructions and cannot use that time freely to pursue their own interests.

   

It is worth noting that the National Minimum Wage Regulations state that travel between a worker’s home and their workplace or a place where an assignment is carried out is not included in the calculation of hours for minimum wage purposes.  Therefore, while travelling time between a peripatetic worker’s home and the first and last assignment of the day could constitute working time for the purposes of health and safety requirements, it would not necessarily lead to additional remuneration.

   

For further advice on working hours or any other area of employment law, please contact our Employment Team today on 01256 844888 or email enquiries@lambbrooks.com

   

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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