EFTA Court holds that travel time to temporary work place is working time

In the case of Thorbjorn Selstad Thue v The Norwegian Government, the European Free Trade Association (EFTA) Court held that the time a police officer spent travelling between his home and his temporary place of work was working time for the purposes of the Working Time Directive. 

Background

The Working Time Directive defines ‘working time’ as any period during which a worker is working, at the employer’s disposal, and carrying out his activity or duties.   A ‘rest period’ is defined as any period which is not working time.    Neither the Directive nor the UK’s Working Time Regulations address whether travel time to and from work or between different places of work falls within the definition of ‘working time’.

This case concerned the working practices of a police chief inspector, Mr Thue, who was typically based at a single police station. From 2005 to 2014 he was part of a special response unit, the duties of which included armed response actions and escort assignments.  Mr Thue was required to travel to different locations to carry out the assignments. He claimed that his working hours had been incorrectly calculated in respect of three such assignments. In particular, he claimed that the time spent travelling from his home to one of the assignments and returning home from each of the assignments was working time for the purposes of Norwegian law and the Working Time Directive.  Mr Thue’s claim was rejected initially and on appeal. He then appealed to the Supreme Court of Norway, which referred questions to the EFTA Court.

Decision

The EFTA Court advised that:

  • the necessary time spent by worker travelling, outside normal working hours, to and from a location other than his fixed or habitual place of work in order to carry out his duties in that other location, as required by his employer, constitutes ‘working time’ within the meaning of the Working Time Directive;
  • there is no need to carry out an assessment of the intensity of the work performed while travelling; and
  • the frequency of such journeys is immaterial, unless the effect is to transfer the worker’s place of employment to a new fixed or habitual place of attendance.

Comment

As this case was heard by the EFTA Court, it is not binding on EU member states but it will be persuasive when the courts of the EU’s member states consider the interpretation of the Working Time Directive. It therefore provides some guidance in an area with limited case law. Employers should bear this in mind and be aware of the possibility of travel time being included within working time, even for workers for whom travel to and from various locations is not inherent to their day-to-day role. For example, it may be relevant when considering arrangements for workers who are required to complete temporary project work or to visit client sites.  

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Lloyd Davey

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