A mobile (peripatetic) worker is anyone who either has no fixed workplace or works at different locations away from their normal workplace. They are like all other employees or workers in many respects, but it is important to bear in mind that there are certain considerations and potential complications when dealing with mobile workers.
Here our expert employment solicitors have compiled an advice guide on the law relating to mobile (peripatetic) workers, to cover:
- What is a mobile or peripatetic worker?
- Why are there employment law issues with mobile workers?
- Where are peripatetic workers based?
- Is travel time considered ‘working time’ for mobile workers in the UK?
- Calculating rest breaks for mobile workers
- Do employers have to pay mobile workers for travel time?
- Are there any other consequences of the Tyco case?
- Auto-enrolment pensions issues with mobile workers
What is a mobile or peripatetic worker?
A mobile worker is anyone who either has no fixed workplace or works at different locations away from their normal workplace.
Examples can be found in all areas of the economy:
- Airline pilots/cabin crew – travelling to different airport destinations
- National or international salespersons – who may or may not have a fixed work base, but spend most of their time travelling to customers or prospective customers
- Supply school teachers/teaching assistants – who may spend one or two terms at one school before moving on to teach at a different school
- Care workers – travelling from their home to a customer’s home to provide services before moving on to the next customer;
We are using the term ‘workers’ here loosely. The employment status of an individual will depend on the terms of the contract they have. Broadly speaking there are three types of employment status:
In this guide, a ‘mobile worker’ could be either an employee or a worker.
Why are there employment law issues with mobile workers?
As mobile workers do not work at a single place of work and often work hours other than the ‘normal’ 9-5, there are many issues that are particular to such workers.
They tend to work odd hours, which means calculating when they are working, traveling or on rest breaks can be challenging.
Mobile workers that travel abroad for much of their work might also pose problems in assessing where they have a base, for the purposes of a base for pension auto-enrolment or for basic employment rights enforcement.
There are additional health and safety risk assessment issues that need to be considered, including lone working, working late, evening or night shifts, increased risk of being victims to violence. It is therefore important that appropriate risk assessments are carried out for mobile workers and are regularly reviewed.
Where are peripatetic workers based?
The House of Lords has stated that all employees must have a base. That base might be inside or outside the UK, but they must have a ‘base’ to establish their employment rights. There is an apparent exception when it comes to mobile workers and pension auto-enrolment.
The extent to which individuals who work wholly or partly outside the UK might be protected by UK employment legislation can vary, depending on which legislation is being considered. Essentially there either needs to be a strong connection to the UK or an establishment in the UK.
A mobile worker’s base should be treated as their place of employment or engagement, and therefore they will normally be protected if their base is the UK. What happens in practice should be considered, not just what the contract states. There may be several factors which cast light on where the mobile worker is based, including:
- Where the individual has their headquarters, or where their travels begin and end (this, in practice, is likely to be the decisive factor);
- Where the individual has their home;
- Where the individual is paid and in what currency; and
- Whether the individual is subject to National Insurance contributions.
Is travel time considered ‘working time’ for mobile workers in the UK?
To understand whether travel time is ‘working time’ for mobile workers it is first necessary to understand what is regarded as ‘working time’.
‘Working time’ is any period during which the individual is working, carrying out duties and at the employer’s disposal. Alternatively, it can be when the worker is receiving relevant training or other period set out in a collective or workforce agreement or a contract of employment. For the purposes of this guide on mobile workers, we are going to focus on the first definition (that is, when the individual is working, carrying out duties and at the employer’s disposal).
Time spent commuting would therefore not usually be viewed as working time. You as an employer have no control over how long the individual spends commuting as this will depend on where they live and so they will not be at your disposal until they reach their workplace. This is true even if the individual voluntarily makes work-related telephone calls or deals with work during their commute.
However, this is not the case with mobile workers.
The European Court of Justice decided (in a case referred to as ‘Tyco’) that when an individual does not have a fixed place of work, the time they spend travelling from their home to their first assignment and from their last assignment back home is treated as working time.
The rationale is that they are travelling to carry out work this was because in this case when the individuals were travelling from a fixed place of work to the first assignment of the day it was treated as carrying out their duties by the employer. The court decided that the nature of the journey did not change simply because the individual was travelling from their home rather than a fixed place of work. They were at the ‘employer’s disposal’ because the employer was requiring them to be in certain places to carry out their work and could change the place, at or from which, they arrive or leave. The fact that the journey started and finished at the individual’s home was regarded as irrelevant.
The fact that such travelling time is ‘working time’ is potentially open to abuse by the individual. To prevent such potential abuse, it is recommended that you take steps to ensure that you can monitor the time spent whilst travelling so that the time spent can be accurately calculated.
Calculating rest breaks for mobile workers
Obviously, if the Tyco case means time spent travelling is working time then this will now count as part of their hours for the ‘maximum weekly working hours’. Do remember that this only applies to mobile workers. It does not apply to worker who have a fixed place of work. Whether such travel time will count as part of the 48 hours maximum working week, it is also dependent on whether the individual has signed an ‘opt out’. If the individual has signed an opt-out, then it will not matter if the travel counts or not.
It will, however, matter in relation to rest breaks the individual is entitled to. This is because individuals cannot opt-out of their rest breaks. Where this is likely to impact most is on the 11 consecutive hours daily rest break.
For example, if a mobile worker arrives home from their last assignment at 7pm in the evening, to comply with the daily rest break requirement of 11 consecutive hours, you would not be able to require the individual to start their travel from home to their first assignment the following day before 6am. It is therefore important that working patterns are audited to ensure that the rest break requirement is observed.
It is also likely that the time from which the calculation and timing of 6 hours rest breaks are correspondingly changed too.
Do employers have to pay mobile workers for travel time?
If you ordinarily pay for mileage for business-related travel, it might be that you need to reimburse for this travel time too.
Whether you must pay a mobile worker for their travel time (as well as their business-related mileage) will depend, in part, on what their contract says. If the contract states that that they are paid for the hours they work or if there is there is a general understanding that workers are paid for hours that they work, it is arguable that travel to and from first and last customers should be paid.
If the contract states that there is no entitlement to be paid whilst travelling to and from home, then such working time will not require additional payment. This is also likely to be the case if an individual receives a salary for their set hours of work (which does not including travelling to and from home), but do have an obligation to work ‘such additional hours as are reasonably necessary’ then there is an argument that you do not have to pay for the travel time that is now regarded to be working time.
Are there any other consequences of the Tyco case?
If the travel time spent travelling from home to the first assignment at the beginning of the day and from the last assignment to home at the end of the day is ‘working time’, this means that anything the mobile worker does during this time could cause liability for you as the employer. For example, there are liability implications if they accidently cause personal injury to another road user or potentially if they deliberately carry out an unauthorised and unlawful act.
Auto-enrolment pensions issues with mobile workers
The High Court has indicated that not all mobile (peripatetic) workers will necessarily have a base for pension auto-enrolment purposes.