In a recent case law, the French High Court held that when the home-to-customer travel time performed by a mobile employee meets the legal definition of actual working time, this time must be paid as such.
In French law, the definition of “actual working time” is the time during which the employee is at the disposal of the employer and follows its instructions without being able to go freely about his/her personal business.
The law also provides that the time spent commuting from the employee’s home to the place of work is not considered as “actual working time”. However, occasional commuting time in excess of the employee’s habitual commuting time (defined as the commuting time from his/her home to his/her habitual place of work) should be compensated either by rest or by additional financial compensation. In this case, the law does not impose any specific amount of such rest or financial compensation which is determined by an employer policy.
The difference between the remuneration of commute time as “actual working time” and the financial compensation for excess commuting time is that if it considered as “actual working time”, it may give rise to the payment of overtime at the employee’s uplifted hourly salary rate. This is not the case for a simple financial compensation which can be less than the employee’s hourly salary rate.
But what about a mobile worker whose contractual duties imply frequent travel to different places of work?
This was the question submitted to the French High Court to which the latter answered in a decision dated March 1st, 2023.
In the case in question, an employee, working as a maintenance technician, whose activity consists of carrying out small repairs in the Normandy region with a company vehicle, was claiming overtime payment for the travel time between his home and his first and last customers of the day.
The Court of appeal had dismissed his request on the grounds that this business travel time did not constitute actual working time because the employee enjoyed a certain degree of autonomy in the organization of his work, so that he was not permanently at the employer’s disposal.
To dismiss the employee’s claims for overtime, the judgment held that the provisional schedule of operations for preventive maintenance or periodic verifications was organized between the employee and his manager 3 to 4 weeks in advance but that for curative maintenance operations, the employee was contacted by telephone to verify his availability before confirmation of the mission, so that he was not at the permanent disposal of the employer prior to his departure and therefore benefited from a certain autonomy in the organization of his work.
But the French High Court cancelled the Court of appeal’s judgement and recalled the principle that to not be compensated as overtime, the time spent travelling between home and customers by a mobile employee must not meet the definition of actual working time.
The Court considers that this is not the case when the employee is subject to a provisional schedule for maintenance operations and, to carry out these operations, uses a service vehicle and is required to transport spare parts ordered by customers.
Consequently, the commuting time of this employee must be considered as actual working time and be paid as such and not be subject to simple financial compensation.
Therefore, as the French High Court assesses whether the travel time constitutes actual working time on a case-by-case basis, it is important to remain vigilant with regard to employees’ working conditions, and to check prior to the conclusion of the contract and during the employment relationship whether, given the nature of the employee’s assignments, his/her travel time meets the definition of actual working time. This would help to anticipate potential future difficulties in the payment of the employee’s remuneration.
Should you have any questions, or should you need assistance in this matter, please do not hesitate to contact us.