How European case law impacts employees not assigned to a fixed or usual place of work?
A request for opinion on the situation of employees not assigned to a fixed or usual place of work was brought before the Court of Justice of the European Union (“ECJ”) by a Spanish judge (ECJ,September 10th 2015, n° C-266/14).
The question was to determine whether, for employees who are not assigned to a fixed or usual place of work (in this case, technicians installing security systems at different places), the time spent travelling between home and the premises of the first and last customers designated by the employer constitutes or not working time, according to the stipulations of the European directive 2003/88/EC of November 4th 2003 concerning certain aspects of the organisation of working time.
In this case, the employer calculated daily working hours by counting the time elapsing between when its employees arrive at the premises of the first customer of the day and when those employees leave the premises of the last customer, account being taken only of the time of the work on the premises and of the journeys getting from one customer to another. The working hours did not include the time spent travelling between home and the premises of the first and last customers, time being considered by the employer as rest time because its employees were not, according to the employer, carrying out their activities or duties.
The ECJ did not accept this argument, and held that the European directive CE 2003-88 of November 4th 2003 must be interpreted as meaning that, in such circumstances in which the employees are not assigned to a fixed or usual place of work, the time spent by them travelling between home and customers constitutes working time.
In France, the time spent travelling between home and the usual or first and last place of work is not considered as working time. However, if this time exceeds the time normally spent travelling by the employee between home and the usual place of work, article L. 3121-4 of the Labour code provides for a compensation of the unusual travelling time either in rest or in remuneration to be determined in the framework of a Company’s policy. To determine the unusual travelling time of employees without a fixed or usual place of work, the case law refers to the usual commuting time within the region where the employee works.
The question remains as to how the case law of the ECJ will impact in France. To this end, it remains to be seen an evolution of the French High Court case law or an intervention of the French legislator.
For the time being, in France, employers are not obliged, per applicable Law, to give full effect to the European case law related to the time spent travelling from home to the first client and from last client to home for employees not assigned to a fixed or usual place of work. The ball is now in the Labour chamber of the French Hight Court (if a dispute on this question was brought before the High Court) or in the legislator’s.Should you have any questions or if you require any assistance with this matter, please do not hesitate to contact us.