100: European Free Trade Association Court rules that travel time between home and temporary work place can be working time

The EU Working Time Directive defines ‘working time’ as any period during which a worker is working; carrying out their duties; and at the employer’s disposal.

Neither the Directive nor the UK’s Working Time Regulations address whether travel time to and from places of work or between places of work falls within this definition. In Federacion de Servicios Privados v Tyco, the European Court of Justice held that where workers do not have a fixed or habitual place of work, time spent travelling from home to the first customer and returning from the last customer to home is working time under the Directive.

This principle has now been extended in the recent case of Thorbjorn Selstad Thue v The Norwegian Government, where the European Free Trade Association (EFTA) Court held that the time a police officer spent travelling between his home and temporary assignments outside his normal working hours was working time.

Mr Thue, a Norwegian police chief inspector, was based at a police station. He was also in a special response unit which carried out temporary assignments away from his normal place of work undertaking armed response actions and escorting visiting government ministers. Mr Thue brought a claim alleging that the time spent travelling from his home to one of these special response assignments, and returning home from three assignments, was ‘working time’. The Supreme Court of Norway referred his case to the EFTA Court.

The EFTA Court held that time spent by Mr Thue travelling outside his normal working hours to and / or from these temporary assignments satisfied the three elements of the definition of working time in the EU Working Time Directive. First, Mr Thue was carrying out his duties because the additional journeys were essential in order to perform the tasks required by his employer. Second, whilst travelling to and from the assignments in question, Mr Thue remained at his employer’s disposal because his employer maintained the right to cancel, change or add assignments, and he was not free to pursue his own interests during that time. In this case, it was also relevant that Mr Thue travelled in police vehicles monitored by GPS, was armed, and carried a work mobile phone. Third, Mr Thue was working whilst travelling to and from the assignments because this time was an intrinsic aspect of the work. There was no need to assess the intensity of the work being undertaken whilst he was travelling. It was also immaterial whether those journeys took place outside his normal working hours.

As this case was decided by the EFTA Court, it is not binding on EU member states. However, it will be persuasive in future ECJ cases involving the interpretation of the Working Time Directive. Employers should therefore be aware that travel time may be included in the definition of working time where workers have a normal place of work but are also required to carry out assignments elsewhere, for example, when undertaking temporary projects or visiting clients. The EFTA Court described this as an ‘intermediate’ position between mobile workers who have no fixed or habitual workplace, for whom travel time to work can count as working time (as in the Tyco case); and workers who are permanently based in one workplace.