If a worker’s obligation to remain physically present at a place determined by their employer limits that worker’s opportunities to devote him or herself to personal and social interests, that time should be regarded as ‘working time’ for the purposes of the Working Time Directive.
This is a recent ruling from the European Court of Justice (ECJ) in a case brought by a Belgian fire fighter and has implications for UK employers who operate on-call or stand-by systems of work, e.g. emergency services, IT support, public relations.
Mr Matzak brought the case under the Working Time Directive (WTD) based on the significant constraints placed on him during the time he was on-call. One week in every four, his employer expected him to be on-call at home during evenings and weekends. During this time, he was also obliged to remain within eight minutes of his place of work. The employer did not pay Mr Matzak for the time he was expected to be on-call.
What is the Working Time Directive (WTD)?
The objective of the Working Time Directive is to ensure the health and safety of workers by granting them adequate rest periods. This European legislation limits the length of the working week, and governs minimum entitlements to rest breaks and paid holiday leave. In the UK, the WTD is implemented into law by the Working Time Regulations 1998.
In this case, the ECJ ruled that the quality of Mr Matzak’s rest periods, (i.e. his evenings and weekends), had been restricted by his employer. Under the WTD the more restrictive the constraints, the more likely it will be that the time will be regarded as working time rather than a rest period.
What employers need to know about stand-by time
The judgement has no direct implications for remuneration during on-call time
Contrary to inferences in a number of British media reports, the ECJ’s ruling does not have any direct implications with regard to pay for such periods in the UK. It does not change the definition of working time for the purposes of the National Minimum Wage (NMW) regulations. This excludes any time where the worker is genuinely on-call, but based at home.
It is important to note that the NMW regulations make a distinction between genuine ‘on-call’ time, and instances where, although based at home and providing what might be termed an ‘on-call’ service, the worker can be deemed to be working throughout the whole of their shift.
An example of such a case involved nurses who were required to answer and respond to calls made to an out of hours telephone service during the night, and who did so from home. Although they were free to spend the time between calls as they wished, the Tribunal deemed that the whole shift constituted working time for the purposes of the NMW.
If you have any questions around this subject, or your organisation is impacted by employment law issues raised by this case please contact us and we’ll be happy to offer our expert advice.