Employers urged to err on the side of caution when the staff commute counts as work

A call for employers to pay staff for the time they spend emailing while commuting has opened up the debate on what constitutes working time for employees. Researchers from the University of the West of England who found that commuters used free Wi-Fi provision on their journey to and from work to ‘catch up’ with work emails, have argued this supported the argument that the commute be counted as work. Until now, there has been little research to evaluate the impact free Wi-Fi provision has had in the UK, despite government encouragement for companies to provide access on transport networks. Traditionally, the government has been more concerned about the benefits of free Wi-Fi for business travellers, but the research team believe that the impact on commuters may be more important. When the researchers looked to Scandinavia to see how commuting time could be measured differently, they found that in Norway some commuters are able to count travel time as part of their working day.

Dr Juliet Jain who presented the findings at the at the Royal Geographical Society commented: “If travel time were to count as work time, there would be many social and economic impacts, as well as implications for the rail industry. It may ease commuter pressure on peak hours and allow for more comfort and flexibility around working times. However it may also demand more surveillance and accountability for productivity.”

Trains would also have to offer a good working environment including tables, power, space and good continuous connectivity for internet and phone calls, which would need investment from train operators and telecoms industries.

Associate and employment law expert at HRC Law, Siobhan Howard-Palmer said: “The European courts have been considering the ongoing issue of working time for employees over the past few years which started with sickness and holiday, then overtime, on-call time and travel time to name a few. The result of this is that the law continues to move further and further in favour of the employee and protecting their work/life balance as much as possible. Therefore employers should err on the side of caution.”

“If commuting is to be taken into account as working time, the first point of action should be to identify what this time is termed; is this considered overtime? If so then does it attract additional pay and how would this be monitored? If it doesn’t warrant overtime pay then consideration may need to be given against the national minimum or living wage. In any case, consideration must also go to the welfare of the employee and their entitlement to rest periods.

“But that’s not all. Employers need to consider wider implications of such practices including data security and GDPR. If employees are to be working during their commute, devices should be equipped with appropriate security installed to comply with GDPR and the employer’s own policies in relation to client data.”