Recent AG opinion on Working Time

Working Time for on-call workers has been the subject of much legal debate. In deciding whether on-call time satisfies the definition of “working time”, case law has tended to focus on the worker’s location during these stand-by periods.  Case law has held that on-call time constitutes working time if the employee is required to be in the workplace rather than at home, even if the worker is asleep (at the workplace) for some or all of that time.  What about people who are on stand-by at home?  On-call time from home in circumstances where workers live in accommodation tied to their job or from accommodation of the worker’s choice but within a specific radius of different workplaces have both been held to be working time for the purposes of the Working Time Regulations 1998.

In a recent case, the Advocate-General has given an opinion on whether a retained firefighter who worked on-call duties should be paid for time spent on duty.  The concept of “working time” is defined in the Working Time Regulations 1998 as any period during which a worker is:

• working;
• carrying out their duties; and
• at the employer’s disposal.

All three criteria must be met.  Matzak, a retained firefighter in Belgium, was required to be available on call for work, one week out of every four, during the evenings and at the weekend. When on stand-by duty, Matzak was required to remain contactable and, if necessary, report to the fire station as soon as possible, and in any event within no more than eight minutes under normal conditions. This necessitated living near the fire station and restricted his activities when on stand-by duty. Time spent on stand-by duty was unpaid.  Matzak brought proceedings against his employer arguing that he should be paid for time spent on stand-by duty. The Brussels Labour Court referred a number of questions to the ECJ including ”Does the Working Time Directive prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?”

The Advocate General concluded that what matters is the quality of the time spent on stand-by duty ie in practical terms, do the restrictions imposed by the employer on that stand-by time effectively mean it should be classified as working time? The Advocate General suggested that proximity to the workplace should not be the deciding factor in determining whether on call-time is working time, rather equal emphasis should be given to the quality of the time and the degree of freedom that a worker may enjoy when on stand-by duty.

This approach might mean that on-call time spent in a worker’s home could qualify as working time where their freedom to engage in rest activities during that time is severely impacted, even if there is no required proximity of their home to their place of work. On-call work affects many sectors, from engineering to care work.  Employer should review their arrangements for on-call workers to ensure any working time is appropriately recognised and remunerated.

For tailored advice and assistance on working time or other employment law issues, contact our Employment Team on 01905 677041 or email:mchamberlain@thursfields.co.uk

Ville de Nivelles v Matzak (C-518/15) July 2017