A New Supreme Court Ruling Sheds Light on When Travel Time Is Working Time

The Supreme Court of Norway has ruled that travel time spent by a police officer to and from a location other than the normal workplace, and outside of the ordinary working hours, is considered “working time” in accordance with the Working Environment Act (WEA).

The police officer was part of the police district’s Special Emergency Unit. As such, his place of work was regularly somewhere other than the ordinary local police station. The main question before the court was whether the officer’s travel time outside of normal working hours to various places of work should count as working hours.

According to the WEA, “working time” is defined as time when the employee “is at the disposal of the employer.” The fundamental principle, as confirmed by the Supreme Court, is that travel time outside normal working hours is not considered working time, unless the employee has to be at the employer’s disposal during that time.

After assessing the specific circumstances of the case, the Supreme Court concluded unanimously that the police officer’s travel time should count as working hours because the police officer was at the employer’s disposal. The Supreme Court emphasized, among other things, that:

• The employee traveled via the employer’s means of transport and had to bring with him equipment from the employer.
• The travel time was necessary in order to carry out the work.
• During the travel, the employee was obliged to follow any instructions given by the employer.
• The employer could freely cancel, change, or add assignments.
• The employee could not without interruption be occupied with his or her own interests during the journey.

Comment

As the Supreme Court’s reasons for the decision are specific to the case, the judgment provides few general guidelines regarding when travel time is working time. Further, the judgment does not establish minimum requirements for traveling time to be considered working time.

However, some principles can be identified. For example, occasional short travel outside of normal working hours (such as travel to attend an annual conference) will not normally count as working time, unless specific circumstances apply that suggest the employee is at the employer’s disposal during the travel.

In companies where employees regularly travel outside of working hours, a customized policy for calculating working hours and compensation for travel time may be an acceptable solution that is unlikely to be overturned by a court.

When employers are considering a policy, relevant factors include the length and frequency of travel, whether the employee can choose the method of transport, and whether the employee is free to be occupied with his or her own interests. The policy may be established in cooperation with the elected representatives.

Where frequent travel implies working time and potential overtime issues, an agreement with employees on how to calculate normal working hours may provide a degree of predictability.

Written by Pål Kvernaas of Haavind and Roger James of Ogletree Deakins