Employees paid in traffic jams?

By Mr. Tjeerd Hoekstra, CMS   Many FHI companies employ employees who are regularly on the road, for example to visit your customers. If that is the case, the travel time that employees make in that context can be regarded as working time, insofar as the contractually agreed working time is exceeded as a result of that travel time. And if that is the case, the question is whether that working time is eligible for compensation. The Arnhem-Leeuwarden Court of Appeal recently issued a clear decision on this. This decision is interesting because the Court of Appeal took a close look at both European legislation and rulings of the European Court of Justice, as well as Dutch legislation. In practice, it will often happen that an employee works for the employer longer than the contractually agreed number of hours due to the travel time to and from the work location (customers or projects). This will occur more quickly if an employee performs a function that requires him to travel to the customer or a project location, such as the positions of Service Technician and Sales or Account Manager. In September 2015, the European Court of Justice (the “Court”) ruled in a Spanish case that the travel time of employees - who do not have a fixed or usual workplace - to a customer should be regarded as working time. The reasoning behind this was that working time includes the time during which the employee is working, is at the disposal of the employer and performs his work or function - all this in line with national law. The Court has determined that the employee is subject to the employer's right of instruction during travel time to a customer. The employer can change the order of customers to be visited or delete or add appointments. In the 2015 judgment, the Court emphasized that European regulations in this context only impose conditions on the qualification of working time. Whether that working time is also eligible for compensation is not determined by European legislation and regulations. In 2013, the Supreme Court already ruled that the travel time from the employee's place of residence to a customer or project of the employer must be regarded as working time. In this respect, the highest national court and the highest European court agree. In the case before the Arnhem-Leeuwarden Court of Appeal, an employee took the position that the extra travel time he made from his place of residence to the work location where he was (temporarily) seconded should also be eligible for compensation. The employee had filed a wage claim for this. The Arnhem-Leeuwarden Court of Appeal bases the decision on European legislation and the case law of the Court and the Supreme Court. Neither European law nor Dutch law stipulates that travel time that is regarded as working time should be eligible for compensation. It is of course possible that the travel time that is regarded as working time is eligible for compensation if this has been contractually agreed by the employer. Consider schemes that stipulate that travel time from a certain duration (for example 30 minutes) is rewarded at an (hourly) rate. Such agreements can be laid down in a collective labor agreement, personnel regulations or in an individual employment contract. If no agreements have been made about remuneration for travel time to customers and/or projects of the employer, employees cannot claim reimbursement for that travel time. If employees are actually already paid in a traffic jam, this will be the result of concrete agreements made about this by the employer.