Unsurprisingly, the Court of Cassation confirms its new position concerning the travel time of itinerant employees who must be available to the employer during their travel time between their home and the first and last customer.
The time that the employee takes to get from his home to his place of performance of the employment contract is not considered as effective working time. He is not paid.
But if the business travel time exceeds the normal travel time between home and the usual place of work, the employee benefits from compensation:
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either in the form of a rest;
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or financial (Labour Code, art. L. 3121-4).
To determine the concept of normal time, reference must be made to the journey time considered normal in the region where the employee works.
Under certain conditions, these hours of travel are qualified as effective working time.
The duration of actual work is the time during which the employee is at the disposal of the employer and complies with his instructions without being able to freely attend to personal occupations.
At the end of 2022, the Court of Cassation changed its case law on travel times in order to align with that of the CJEU. The latter considers that daily travel time constitutes “working time” (CJEU, 10 September 2015, Tyco, C-266/14).
For the Court of Cassation, the travel time taken by an itinerant employee between his home and the sites of the first and last customers meets the definition of effective working time if:
The Court of Cassation has just confirmed its position in a case where the employee had seized the industrial tribunal of a request for payment of back pay, in particular for overtime.
The activity of the employee, a maintenance technician, concerned small repairs in the Normandy region. It was subject to a provisional schedule for its maintenance operations. They were organized 3 to 4 weeks before in order to confirm appointments with customers. This represented 90% of its activity.
Curative maintenance operations were scheduled following informing the employee by telephone in order to check his availability before confirming the mission with the client. As part of his activity, the employee had to transport spare parts ordered by customers in his service vehicle.
The Court of Appeal had dismissed the employee’s claim for payment of overtime. For her, her business travel time did not constitute actual working time.
But the Court of Cassation reverses this decision and confirms its new position. The employee was subject to a provisional schedule, used a service vehicle and had to transport spare parts ordered by customers. The employee therefore had to be at the disposal of his employer and comply with his instructions without being able to go regarding his personal business.
The Court reverses the decision, the case will have to be retried…
For more precision on the determination of effective working time, Tissot Editions recommends their documentation ” Manage ACTIV staff ».
Court of Cassation, social chamber, 1is March 2023, No. 21-12.068 (if during his travel time between his home and the sites of the first and last customers, the employee uses a service vehicle and is at the disposal of his employer, these travel times are counted as actual working time)
