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When should you pay an employee for their time spent travelling?
The issue of what constitutes working time; particularly in relation to time spent travelling is something which we are asked about a lot and is something which is commonly misunderstood.
Here we look specifically at whether time spent travelling is classed as working time and particularly whether that time ought to be paid.
That might seem an odd point to make because surely all ‘working time’ would be paid, wouldn’t it? Not necessarily. This is why we need to make a very important distinction between the Working Time Regulations and the National Minimum Wage Regulations before we go any further.
- National Minimum Wage Regulations (NMW) set out the minimum payment requirements of employers.
- The Working Time Regulations (WTR) is concerned with the welfare and safety of the workforce. The WTR defines working time; it does not legislate in respect of pay.
So what is working time?
Working time is defined under the WTR as:
- Any time spent carrying out work activities/duties for an employer and where an employee is at their employer’s disposal.
- any period during which he or she is receiving relevant training;
- any additional period designated as working time under a relevant agreement
Where does travel time fit into this?
Here we will look at several scenarios and look at whether they constitute working time under the WTR’s. We will also look at what the pay obligations are, if any:
1. Travel to and from work
This is the most straight forward scenario. If an employee has a fixed place of work e.g., they are office based, there is no legal requirement to pay them for their daily commute. Granted their commute may be a bit of a nightmare but it doesn’t constitute working time.
In fact the NMR’s specifically exclude time spent commuting.
- Working time? No
- Paid working time? No
2. What about workers who attend to emails and take calls during their commute?
It’s a common sight on trains to see people (who are lucky enough to get a seat) on laptops, tablets or phones trying to get ahead of the day, or catch up on the day before, by taking calls or dealing with emails etc., but does this constitute working time?
‘At your disposal boss’
It’s not uncommon for staff to put in the odd extra hour here and there, most do so with goodwill and don’t expect payment, unless it is agreed overtime.
However, if you expect your staff to carry out work duties prior to arriving at the office or expect them to be available to you during this time over the phone, then the employee is ‘at your disposal’ and therefore they are working.
It’s important to record and monitor this time for the purposes of calculating rest breaks and total working hours as per the WTR’s.
Remember the WTR’s do not legislate on pay, so unless the employment contract states otherwise, this time is not necessarily paid.
- Working time? Yes
- Paid Working Time? No
3. Travel to the first or last assignment
If an employee does not have a set place of work, for example they are Sales Reps, Care Workers attending to service users in their own homes and so on, their time spent travelling to their first assignment or appointment will be classed as working time, as will their time spent travelling to their home from their last assignment/appointment.
This is because these appointments/assignments/visits are arranged by the employer and the employee is not at liberty to do their own thing in the way they would if they were simply travelling to or from the office (such as having a quick power nap on the bus or train!)- in other words, they are ‘at your disposal’.
Again this working time needs to be monitored in accordance with the WTR’s when calculating breaks and total working hours but unless there is a specific agreement or it is stipulated in the contract, it is not paid.
- Working time? Yes
- Paid Working Time? No